Agenda - Planning Commission - 06/01/2006

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Page 6 -- May 25, 2006 Variance-- City gives preliminary approval for building plans Later discovers building exceeds height ordinance Citation: City of Dallas v. Vanesko, Supreme Court of Texas, No. 04-0263 (2006) TEXAS (04/07/06) -- Vanesko wanted to build a new house on property that he owned in an R-10 zone of Dallas. He submitted an application to the city for a building permit. To save money, he designed the new structure and acted as his own general contractor. Vanesko paid an additional fee to the city for a more extensive review of the plans than was normally conducted. The review was meant to ensure that the plans were in compliance with all of the city's building codes and ordinances. After the intensive review, the citY approved the plan and issued a building permit. During construction, city inspectors visited the site frequently without inci- dent. However, after Vanesko began building the roof, an inspector informed him that the height of the new house would violate the zone's height ordinance. In the plan that Vanesko submitted -- and was approved -- the structure had a height of 38.25 feet; as constructed, it had a height of 38.11 feet. The maximum heigh~ allowed in an R-10 zone was 30 feet. The inspector advised Vanesko that he had to get a variance to continue construction on the house. Despite support from the neighborhood and city staff, Vanesko's variance request was denied by the City of Dallas Board of Adjustment. Vanesko ap- pealed the board's decision to court. The trial court, noting that all of the criteria for a variance were met, found that the board had abused its discretion in denying the variance. It reversed the board's'decision, and sent the matter back' to the board for further proceedings. The city appealed. DECISION: Reversed. The appeals court noted that the only question before the lower court was the legality of the zoning board's order, and the burden for establishing that the board had acted illegally was on Vanesko. Vanesko needed to show a "clear abuse of discretion" by presenting evidence that the board had acted without regard to zoning ordinances or that it had applied the law incorrectly. However, the appeals court found that the board did not abuse its discretion, and found in favor of the city. The city ordinance had specific language that restricted the conditions under which a variance could be granted. The requested variance had to be necessary to permit development on land that otherwise could not be developed in accor- dance with applicable zoning laws. It could not be granted to alleviate a self- inflicted hardship. Fm-ther, the ordinance stated that financial reasons alone could not justify granting a variance, and a variance could not be granted that would cr,:ate a privilege not available to other developers in similarly zoned The appeals court noted that these restrictions "sharply curtail[ed]" the board's ability to grant a variance, and the court could not conclude that the board had © 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 86