April 15, 2024

This post was authored by Tyler Doan, Esq.

The petitioner initially contested the grant of an exception to the local zoning ordinance to allow a converted church in a single-family residence area to be used as “small gathering space” for community events such as bridal and baby showers and class reunions. After a public hearing, the Board of Adjustments granted the exception.

The Petitioner then filed a petition for writ of certiorari challenging the board’s decision. The district court concluded the board “did not act illegally in granting the exception.” The Petitioner then appealed to the present court arguing a lack of authority to grant the exception and that the board erred in concluding there was sufficient parking available to accommodate commercial activities.

The Court, in affirming the district court’s decision that the board had authority to grant the exception, reasoned that pursuant to statutory authority which grants broad authority for the adjustment board to grant special use permits, as well as Petitioner relying on inapplicable sections of the zoning code for special instead uses of exceptions, the board had authority to grant the exception.

In determining that there was adequate parking, the Court first addressed the issue of whether the question about parking was properly preserved on appeal. The Court determined that since the parking issue was raised and decided at the district court level, the issue was preserved. In determining that there was adequate parking, the Court reasoned that per a diagram on record, a letter from the board discussing the 84 year tenure that the house was used as a church and that there was always sufficient parking for church activities, and the Respondent’s discussion with the board of limiting the number of people in the home to 30 for liability purposes, there is substantial evidence in support of the board’s finding that there is adequate parking.

Lastly, the Court determined that since there was no evidence of “gross negligence” in the board failing to require sufficient parking spaces, the petitioner is not entitled to attorney’s fees.

Becker v Dallas Bord of Adjustments, 2023 WL 3612396 (IA App. 5/24/2023)

Leave a Reply

Your email address will not be published. Required fields are marked *