# Board of Appeals Interpretation



## Mule (Dec 6, 2011)

I need a little help understanding a part of the Texas Local Government Code. I know the majority of you are not in Texas but I figure who would be the best to answer this question than all of the smart people on this forum. Besides it just your opinion on what this means?

The Texas Local Government Code specifies the requirements when a municipality creates a Board of Appeals. The part I need you guys to help me on is what the heck this section says!

_Sec. 211.010.  APPEAL TO BOARD.  (a)  Except as provided by Subsection (e), any of the following persons may appeal to the board of adjustment a decision made by an administrative official:_

_(1)  a person aggrieved by the decision;  or_

_(2)  any officer, department, board, or bureau of the municipality affected by the decision._

Subsection 1 and 2 specifies who can appeal to the BOA.

The part in question is at the beginning of the subsection where it specifies (a)  Except as provided by Subsection (e),

Subsection e states: _(e)  A member of the governing body of the municipality who serves on the board of adjustment under Section 211.008(g) may not bring an appeal under this section._

Section 211.008 (g) is the section of the code that creates the BOA.

211.008 (g) states: _(g) The governing body of a Type A general-law municipality by ordinance may grant the members of the governing body the authority to act as a board of adjustment under this chapter._

Just a FYIA Type A General Law municipality has at least 600 inhabitants.

So my thinking is that if you are a Type A General Law municipality and the governing body (the council or whatever) is also the BOA; then a member that is grieved by a decision made by an administrative official cannot appeal to the BOA because they are one and the same.

Scenario... A municipality has a council meeting. It goes to a vote. One of the members does not agree with the way the decision went. They cannot file an appeal with the BOA because the council and the BOA are one and the same. It would be a waste of time and money on the appeal because the outcome would more than likely be the same!

Do you guys see it the same way?


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## mjesse (Dec 6, 2011)

A member of the BOA, may not appeal to the BOA to which he is a member.

That's how I read it

mj


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## cda (Dec 6, 2011)

I have worked for three tx ahj's and they have had seperate appeals board from the council.

And the last appeal than would have been the council

So I guess in those cities a council person could appeal to the board

But yes agree if the board is the council it a member should not be able to appeal

When you say Texas government Code, is this what the city has adopted??  Because I have seen some rewording on how appeals are done


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## mtlogcabin (Dec 6, 2011)

> _(e) A member of the governing body of the municipality who serves on the board of adjustment _


This would preclude members of the BOA who serve on any other governing bodies (not advisory boards) from appealing the BO's decision to the BOA

Example:1. A BOA member also serves on the zoning board that only makes recomendations to the council for final action could file an appeal with BOA

            2. A BOA member also serves on the zoning board who's actions become law could not file an appeal with BOA


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## Mule (Dec 6, 2011)

Thanks for the comments.

cda there is a Texas Local Government Code that ALL AHJ's must go by in the State of Texas. The Code specifies that IF an AHJ adopts an ordinace that creates a BOA then you SHALL follow these rules.

Here is a link to this part of the Local Government Code.

Texas Local Government Code

Of course there are a million moe but this is on the BOA.


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## cda (Dec 6, 2011)

I know what a lot of stuff says, but is not always followed

like the board should not waive stuff


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## cda (Dec 6, 2011)

http://www.sanantonio.gov/dsd/buildingfire_board.asp?res=1024&ver=true

check page five 113.1:::

http://www.sanantonio.gov/dsd/pdf/Ord%202009-10-01-0777B%20IBC.pdf

check 1.04 B # 5:::

http://www.arlingtontx.gov/build/pdf/codes/construction_chapter_2003.pdf

than look at page 8 all of item 12:

http://www.arlingtontx.gov/build/pdf/codes/fire_chapter_2003.pdf


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## Mule (Dec 6, 2011)

That's what you get when you have the "good old boy" system.

We've had problems in the past with our board being the "good old boy" and we have brought in the city attorney to "school" them on the law! In fact we just had a case before the board about ten months ago where they used the good old boy method. We have a training session coming up again with the city attorney.

Get this.. It was an appeal of my decision. There was an existing rail fence that was running along the front of a property probably around 700 feet if not more long. Our regulations say that any fence over 36" must be behind the front building line. The fence was a legal non-conforming fence. They did one of those weekend warrior things where they removed the existing fence and replaced it with a new 6' ornamental iron fence. BIG BUCKS!!!! We wasn't back in the area for a few days and when we drove by it was one of those WHAT?????? Soooooo we contact the people.. remove fence, secure proper permits and locate the fence behind the building line.

Long story short, went to BOA. BOA said the fence sure is pretty we need to find a way to let them keep the fence. The BOA made a ruling that the work performed was a repair and not a replacement! UUUUGGGH. WHAT???? We have a meeting scheduled sometime in the near future with the city attorney.


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## cda (Dec 6, 2011)

Next time it will be inspector wire. Barb or Concertina


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