United States: A Practical Guide For The Day To Day Operations Of The Board Of Adjustment Of A Small Texas City

The Board of Adjustment is a quasi-judicial body. It must act like a judicial body and it performs judicial functions, but it does not make or change laws. Decisions are rendered based upon evidence submitted, not what a member of the Board may think the law should be or how it should be changed. The Board does not change or make laws. Procedure is very important. Each case begins with a petition or request for relief; a hearing or trial is held where evidence is submitted by interested parties; and Board members make such inquiry as is necessary and then decide the case based upon the evidence as submitted. Conflicts of interest must be carefully avoided. Any member who has a stake or interest in a case cannot participate. In the same way, Board members must avoid making statements as to predisposition before the evidence is submitted and limit all discussions to Board discussions in public deliberations. The Board of Adjustment must decide the case publicly and openly. Executive sessions and/or closed sessions are not permitted.

These simple basics, if remembered, may well prevent unnecessary concern as to the legality or advisability of any decision that may be taken by the Board of Adjustment. The reason that the procedure for matters before the Board of Adjustment are so exacting and made very specific in Texas law is that decisions of the Board of Adjustment are not appealable to the City Council or any other municipal authority. The only appeal is to a District Court, and in appeal, the issue is whether procedure has been correctly followed, not whether the decision of the Board of Adjustment is factually correct and accurate.

I trust that any person appointed to the Board of Adjustment in any Texas city will understand that their role in the zoning process is probably one of the most important in the entire municipality. As you will see, members of the Board of Adjustment cannot be removed for political or other reasons by the City Council, but instead, are entitled to tenure during their term of office unless they might be guilty of malfeasance or conscious neglect of duty. It has been said many times that members of the Board of Adjustment have one of or maybe the most important job in the municipality, in that their term of office is secure and not subject to political removal and the decisions of the Board of Adjustment are unchangeable at any level for factual reasons and can only be changed by a District Court if proper procedure was not followed and/or no evidence existed to justify their decision.

In the late 1920's, the Supreme Court of the United States upheld the constitutionality of the power to zone at the local level so long as that power is exercised in accordance with a comprehensive community plan or design. This plan became what has been referred to as a community master plan, development plan or a working plan for development. Whatever name was used is not important now, nor was it important then. The fact is that a community plan must exist if zoning is to be enacted in the community. Courts have frequently declared invalid and unlawful zoning schemes that are arbitrary and constitute unorganized restrictions on the right of landowners to use and improve property. Such unlawful municipal acts are generally referred to as spot zoning or arbitrary zoning. Such acts are invalid because they constitute the "taking of property" without proper and just compensation and are, thus, in violation of the United States Constitution and most state constitutions.

In Texas we call the required plan that was spoken of by the Supreme Court in the 1920's a "comprehensive plan." No zoning ordinance in Texas, is valid unless it is based upon a previously enacted and established comprehensive plan. Many cities have adopted zoning ordinances which seem to be regulatory in nature and fail to say where the comprehensive plan is located. Courts in this state have frequently faced this dilemma and have extended every presumption to validate a municipal act. Clearly the desirable approach is one where each zoning enactment contains a clear and unmistakable identity as to the location of the comprehensive plan.

The legislature has entered this arena by stating in a 1985 amendment to Section 211.004 that the comprehensive plan cannot contain regulations, boundaries or any other element of regulation. This would seem to clearly point communities in the direction of two separate documents, especially those communities who continue to believe that a zoning ordinance may also contain the comprehensive plan and that the same do not have to be clearly definable. Today, without question, cities that do not have separate comprehensive plans and zoning ordinances run a very significant risk of procedural invalidity in the face of any challenge.

In reviewing a zoning ordinance that is adopted by a City Council, the level of judicial inquiry is generally as follows:

• Is the ordinance authorized or permitted by examining other non-repealed provisions of the zoning code?
• Is the enactment in accordance with the provisions of the comprehensive plan? Does the plan recognize the need for the enactment?
• Was the zoning ordinance properly adopted by the municipality; i.e., did the City give proper notices and comply with all other requirements of law? (This generally is not an issue of concern if the legislature of the state has adopted a validating statute since the adoption of the zoning amendment and no litigation has been commenced testing the validity of the ordinance prior to the date of final passage of the validating act.)

The Board of Adjustment is the most powerful body in the municipal environment. A member of the Board of Adjustment can only be removed from office for malfeasance and cannot be removed for any other reason relating to the person's performance of his/her duties. Simply put, a member of the Board can never be removed for an inappropriate decision. Any attempt to remove a member of the Board of Adjustment without formal trial before the City Council is void. If a person is improperly removed from office, a suit may be filed for reinstatement, which is virtually automatic unless the city can show that the person removed was in fact provided a trial and was given the opportunity to present witnesses and evidence.

The decisions of a Board of Adjustment can be successfully appealed for only two reasons:

1. Failure to follow procedural standards established by state law and any rules of procedure that have been adopted by the Board of Adjustment in accordance with state law.
2. The decision of the Board of Adjustment is supported by no evidence; i.e., the Board of Adjustment rendered their decision with absolutely no evidence to support their decision. If there is some evidence to support the decision of the Board of Adjustment, then a Court will not attempt to weigh the merit or degree of any evidence but will instead accept the decision of the Board without substituting its decision for that of the Board.

If after review, the District Court finds that the Board of Adjustment has committed some procedural error, the case will in all likelihood be referred back to the Board of Adjustment for retrial. This procedure would only be followed if it was concluded that the Board could not fairly hear and decide the case for some stated reason. In conjunction with the functioning of the Board of Adjustment, it must be remembered that the Board of Adjustment is, as pointed out before, a "quasi-judicial body" and, as we have observed, exercises judicial power to hear and decide individual cases.

The duties of the Board of Adjustment are derived from the authority granted to the Board under the provisions of state law. We will examine these several functions carefully with primary emphasis on the variance process which will comprise over 90% of the business of the Board. These duties and jobs of the Board are:

1. Hear cases where variances to some provision or part of the zoning code are requested to address some hardship.
2. Consider granting special exceptions when and under such rules as have been established by the City Council, the Board of Adjustment has been granted such authority.
3. Hear appeals from decisions of the Zoning or Building Official as to an interpretation or construction of some part of the zoning code.
4. Hear and decide any other matters that the City Council has conferred on the Board of Adjustment as they have provided by ordinance.

Generally applications for variances are requests by property owners or parties seeking to purchase property, joining with the present owners, to vary some building or site regulations, which usually involve some area requirements such as required side yards, lot coverage or setback requirements. These types of requirements are generally known as developmental regulations. The Board of Adjustment has its power to grant variances from state law. A municipality cannot by ordinance limit or restrict the right of the Board of Adjustment to hear and/or decide cases where variances are requested.

Any property owner or, in fact, any taxpayer cannot be deprived of the right to seek a variance if they choose to do so. The City Council can only provide a very limited amount of regulatory guidance in relation to the variance process. Generally, the City Council may:

1. Charge a fee for filing a variance application;
2. Provide a uniform application form for anyone seeking a variance;
3. Establish an orderly procedure for the meetings of the Board of Adjustment, including the date and time of the meetings of the Board; and
4. Designate alternate members of the Board to sit in the event of absence or resignations of regular members of the Board.

There is a very important limitation to the variance power which is inherent in the grant of the power. Variances are only possible to vary regulations but never to vary use. The Board of Adjustment does not have the power at any time to grant variances to alter the "use" of land which may have been provided by the City Council. Generally by "use regulations" the governing body provides for the use of the property in some basic way. Use can be a designation for single family residential, commercial, industrial or possibly a combination of uses such as light industrial with retail.

There may be occasions where the Board of Adjustment may be unwittingly entwined into a use debate. This may occur as a part of the presentation of a case where a variance is sought in relation to some regulation and the discussion may develop into possible reasons to vary from the underlying use. Such discussions and possible modifications should not be considered because doing so may well represent reversible error where a district court could use the fact that a Board of Adjustment permitted such a discussion as a basis for overturning any decision or part thereof.

Special Exceptions

A zoning ordinance may provide for the granting of special exceptions, permitting the Board of Adjustment to grant exceptions, as is provided by the City Council in the zoning code, to certain provisions of the zoning code under well-defined conditions and circumstances.

In establishing the authority for special exceptions, the City Council "delegates" a certain amount of discretion to the Board of Adjustment to grant or deny the special exception if specified conditions are met. The zoning code may prescribe broad or very limiting bounds for the exercise of such discretion. It is important to distinguish between special exceptions and zoning code provisions which might contain some built-in latitude, such as a "bonus" if certain developmental parameters are met. For example, cities which are developing an infrastructure and seeking to attract high quality commercial development may permit additional stories if the structure does not exceed a certain coverage ratio. Such a provision is considered administrative or possibly legislative, if used as a part of a planned development approval.

If the Board is faced with a decision as to whether to grant or deny a special exception, the Board must necessarily look only to the zoning code for the latitude that may exist in considering a case involving special exceptions. This procedure is totally distinguishable from the mechanism that exists relating to variances. The rules and basic rights to a variance are provided for by state law and the city has little authority to vary from state law while the special exception mechanism can only exist if the local zoning code has initiated and provided for the process and any rules and/or guidelines have been adhered to by the Board of Adjustment in administering the process.

The Board of Adjustment is required to hear appeals from the decision of any municipal official concerning zoning issues or, more particularly, interpretation of the zoning code. If a city official, say the Building Official (or a zoning official) interprets the zoning ordinance in a way that is different from the interpretation of a property owner, taxpayer or any other interested person and an agreement cannot be reached, the Board of Adjustment must by state law render a decision as to the proper interpretation of the Code.

Other decisions made by the Building Official in matters relating to Building Codes and other parts of the Code that are non-zoning in nature are not appealed to the Board of Adjustment. These matters are usually handled before the City Council as in the case of an appeal of any administrative decision of the City. The jurisdiction of the Board of Adjustment is limited to zoning issues.

In appeals concerning zoning decisions rendered by the Building Official, the Board of Adjustment must determine whether or not the Building Official followed the zoning code of the community. Such decisions are usually not complex because the Building Official (or zoning official) is not vested with discretion in making decisions, but acts solely as directed under the Code. These decisions are referred to as "administrative" decisions or actions.

The Building Official under state law is required to act administratively and does not have legislative discretion. The right to act subjectively or to provide legislative discretion can only be exercised by the City Council and by the Board of Adjustment, to a very minor extent, when considering special exceptions and only under such rules and/or requirements as are set out in the zoning code.

The Board of Adjustment is a body created by operation of state law, and the statute provides the framework for the work and procedure of the Board. It is important to adhere precisely and exactingly to the provisions of the statute. With this is mind, I have developed a list of procedures that are relatively easy to follow, and I would recommend that each regular and alternate member of the Board of Adjustment become familiar with what is required.

This is primarily a clerical task, but it is an important first step to be sure that the required notice of the proposed hearing be given in accordance with the requirements of law. Notice is given by publishing a notice in the official newspaper of the City at least 15 days prior to the date of the hearing, and in addition, a notice must be given by mail to the person seeking the relief and property owners owning property within 200 feet of the subject property which is the subject matter of the action of the Board.

A certification from the clerk to the Board that notice has been given in accordance with V.T.C.A., Local Government Code 211.008, et seq., would establish that all required notification was given. In an effort to properly prepare for hearings before the Board of Adjustment, all notices are examined for adequacy and publication dates. Thus, the procedures relating to notices are generally not of primary concern to the members of the Board of Adjustment. Noticing is, to a great extent, simply a clerical function.

A hearing must be held in order to provide the due process that state law requires. There are numerous reported cases involving due process and adequate hearing. The applicable case law seems to turn on whether or not a person has been denied a hearing because of some flaw in the procedure immediately before, during or after the hearing. We believe the requirement of adequate hearing can be met by following certain steps:

1. In each case, the Chairman should explain the issue presented or read the notice of public hearing.
2. Both the applicant and the respondent should be given an opportunity to be heard. This "hearing" is not a structured hearing, and essentially, there are no legal requirements that the hearing be conducted in any particular manner. The only requirement is that a hearing be held, at which time the applicant and respondent are given the opportunity to explain fully and completely their positions. In many cases, there may not be a defined respondent, but the responder or opposition may well be from many different citizens. If there is not a defined respondent, the parties protesting can be asked to appoint a spokesman for the respondent group, and that person should be given an opportunity to appear and present any evidence that the respondent's "side" wishes to present as well as to ask questions of the applicant.

The time limitations for this phase should be reasonable, providing ample opportunity for both sides to be heard. It is very difficult to specify a time restriction in that the time needed will vary from one situation to the next. In some cases, applicants may need as much as an hour while in most, ten minutes should be sufficient. The Chair should suggest some time limitation at the outset of this phase so that the parties can be guided accordingly; however, if someone does not finish a presentation within the suggested time and has additional evidence or documentation to present, additional extensions of time should be allowed to accommodate such needs.

In the entire hearing phase, the Chair should be alert to note redundancy and irrelevant comments. The speaker, whether the applicant or the respondent, should be urged to be concise and avoid time-wasting tactics. The Chair has the power to require the applicant and the respondent to limit their comments only to issues which are relevant to the debate.

Comments which are purely "legislative" in nature should be avoided if at all possible. Such comments could be either praise or dislike for the Code section subject to the case before the Board of Adjustment. It is quite possible that such comments, if made, may be misconstrued by anyone reviewing the record to the point that the integrity of the record upon appeal to a District Court might be compromised or impaired. Whenever "politically oriented" comments are permitted, a substantial risk is run which could cause a District Court to set aside the decision of the Board of Adjustment.

3. The parties (applicant and respondent) should be given an opportunity to address questions to one another. Both the applicant and the respondent should have a reasonable opportunity to ask questions designed to obtain information from the other side. Questions which are argumentative, designed to emphasize a point, redundant or simply do not make sense should be ruled out of order and stopped. Information-gathering questions should be permitted so long as they truly are designed to gain information.
4. The public should be heard. The public, that is, persons who are neither the applicant, the respondent nor spokesman for the respondent group, should be allowed to make comments or inquiries for a brief period of time, usually not more than three minutes per person. If the public desires to ask questions as a group, the Chair should field the questions and determine their relevance before requiring the parties involved to answer. Questions that are relevant and deal with some specific subject matter which is a part of the presentation should be heard. It is recommended that the public be heard only once and not be given a chance to make additional comments unless the Board of Adjustment as a whole deems the comments to be relevant, necessary or in response to new information or new comments received.
5. The input segment should be closed. This is a very important and critical element of the process before the Board of Adjustment and involves the closing of the public applicant-respondent input segment prior to beginning deliberations. Once this phase is closed, I recommend that the public input segment not be reopened. There are a number of reasons involving procedural errors which seem to suggest that if this phase is reopened, new notifications and new advertisements might well be necessary before the matter can appropriately be placed in front of the Board of Adjustment again. If the public segment is reopened and new information is heard without further notice of hearing or rehearing, there may be a question of denial of due process and this may well be a troubling point.

The next step is deliberation and decision by the Board. The Board of Adjustment is not permitted to deliberate in secret or behind closed doors or in executive session. The Board of Adjustment must publicly deliberate its decision or intent to render a decision concerning a particular case or matter before it, which has been subject to a public hearing. It is a violation of the Texas Open Government Code for the Board of Adjustment to deliberate, discuss, ask one another questions or consider a final decision, either behind closed doors or at some other place, including discussion of a decision on the telephone, at a time when the Board of Adjustment is not actually in a public meeting at the time published on the agenda.

It is frequently asked whether or not the Board must deliberate a case on the date the public hearing is held and closed. The Board of Adjustment does not have to deliberate on the same date as the public hearing and may deliberate at any future date; however, deliberations should reasonably relate to the information that has been obtained at either the public hearing or what may have been developed by the Board of Adjustment members through personal observation. It has also been asked whether or not the Board can reconvene or reopen the hearing at a subsequent time to get additional information or to inquire as to additional facts. As indicated, public hearings should never be reopened unless there is new written notification to all the parties originally entitled to receive notice as in the case of a newly called public hearing.

Frequently, however, the Board of Adjustment may have a question concerning some part of their deliberation or a point of information. During deliberations a question can be asked by the Board of someone present, but the response should be limited to the answer to the question. Third parties who may wish to offer a differing view or express additional opinions should not be heard in that their presentation might well be deemed an inappropriate reopening of the public hearing. It should be pointed out that the Board may reopen the public hearing if the reopening occurs the same evening the public hearing was initially called and scheduled.

In addition, the Board can adjourn for the members to make individual on-site examinations of the property or to obtain additional information, including legal guidance or other information which might help the Board make a decision. All such activities are acceptable so long as we recognize three elements of concern during this phase:

1. The public hearing should not be reopened.
2. The Board may consider the evidence submitted at the public hearing (evidentiary phase), evidence submitted by third parties or evidence obtained by personal view.
3. At the conclusion of the hearing, the Chairman, with the concurrence of a majority of the Board of Adjustment, should clearly close the hearing and move the body into the decision-making phase where a vote is taken.

The Board of Adjustment makes decisions by a vote of at least 75% of the total membership of the Board. State law requires that the membership of the Board must be at least five regular members of the Board of Adjustment and any additional alternate members as may be required. In addition, state law requires that 75% of the total members of the Board of Adjustment must attend each hearing or case tried by the Board. If there are five members appointed to the Board of Adjustment, then the necessary number to take action would be four. In determining the required number, we always round to the next higher number for a determination as to the number required. Alternate members of the Board may serve in alternate roles only and may not be counted as regular members. If five regular members are appointed, then any number of alternates may be appointed but the membership of the board remains at five and the 75% is computed based upon five. The Board can decide, on its own motion, not to take a final vote on a particular issue on one date, but may vote on it again at a future meeting. No special published notice is necessary to vote on an issue; the only notice required is that to be posted under the Texas Open Meetings Law. If the Board does not elect to continue discussing a matter because the required number of votes is not being obtained and the matter is not called back on the Board's agenda for further consideration, the decision of the Board to deny the variance (or other relief sought) becomes final even though technically a majority of the members may be in favor of the proposal and would grant it.

The Board of Adjustment is a body which is "of record" and, as such, the findings and decision of the Board, typed, signed by the Chairman and attested by the Secretary, should be filed for record as soon as possible after the hearing and decision of the Board. The date the decision of the Board of Adjustment is filed of record is the very important controlling date for appeals to the District Court.

Discretionary denial of a variance which occurs because one or more member of the Board "does not like it" no longer seems to be a viable response to a variance request. While the discussion that follows is designed only to provide guidance and the list of reasons why a variance should be granted is modified as case law emerges, it is fair to say that adherence to the "should be granted" list now may well serve as the most effective means for the Board to make intelligent decisions in various cases. However, this does not necessarily mean that there may not be other unique criteria or circumstances which may justify the denial of the variance. This information is presented as means of guidance only, so that any member of the Board of Adjustment will have some very practically stated guidance.

1. The relief sought is not specifically prohibited by the zoning ordinance. An example might be a situation where someone requests a side yard variance and the result of the request might be inadequate clearance between buildings, thus causing a possible fire and (provisions prohibiting or limiting entitlement to a variance);
2. The variance sought does not involve a change in the use or zoning district regulations and will not result in the use of land contrary to the Comprehensive Plan;
3. Development which is appropriate for the property cannot be accomplished without the granting of the variance (this is generally referred to as the "hardship" criteria and inquiry should be made as to whether or not the proposed development is appropriate for the property considering similar or like properties in the city and, more important, in the immediate area surrounding the property);
4. Granting of the variance will not be materially injurious to the property or improvements in the neighborhood considering such issues as light, air, congestion, danger of fire, health, safety and well-being. There should be no other types of injury to property as a result of a variance, such as financial injury or injury to property because its value might be affected;
5. The spirit of the zoning ordinance, including the Comprehensive Plan, is observed and there is substantial compliance with other provisions of the zoning code; and
6. The variance is not sought primarily for economic reasons. (Thus, "because it will save money" is not a proper basis for granting a variance.) Although economics may be considered as a secondary or supporting reason for the granting of a variance, it should not be the main or only factor considered.