COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-294-CV
ABDER EL HAMAD APPELLANT
V.
COMMERCIAL BOARD OF APPELLEE
ADJUSTMENT, A DIVISION OF
THE ZONING BOARD OF
ADJUSTMENT OF THE
CITY OF FORT WORTH
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In four issues, Appellant Abder El Hamad appeals the summary judgment
granted in favor of Appellee Commercial Board of Adjustment, a Division of the
Zoning Board of Adjustment of the City of Fort Worth (the “Board”). We affirm.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
El Hamad owns three adjacent pieces of real property (the “Property”) in
the City of Fort Worth (the “City”). The Property is zoned “I” (Light Industrial).
On this Property, he operates what he refers to as “an automotive recycling
facility” and what the Board refers to as a “motor vehicle junkyard” (hereinafter
“the Business”). The parties do not dispute that, for the Business to operate
on the Property, El Hamad must secure a special exception.2
2
… Section 5.141 (“Vehicle Junkyard”) of the City’s zoning ordinance
provides as follows:
The Board of Adjustment shall receive a report from appropriate
City departments when considering a special exception.
....
B. In the “I” or “J” District
A motor vehicle junkyard or used automobile junk area may be
permitted as a special exception. The special exception shall be
subject to the following conditions.
1. The junkyard or area shall not adjoin any residential
district.
2. The junkyard or area must be completely enclosed by a
six-foot screening fence.
3. Special exception approvals shall be limited to the
following period of time. Extensions of time shall each be
subject to the same application, report and hearing
procedures as the original approval.
a. First approval – a period not to exceed five years;
b. First extension – a period not to exceed three years;
and
c. Each subsequent extension – a period not to exceed
2
In January 2006, the Board granted a one-year extension of the special
exception instead of the two-year extension El Hamad had applied for, with a
stipulation that cars could not be stacked above the height of the fence. 3 One
of the board members moved to approve the request for two years to give El
Hamad time to move out of the neighborhood, but that motion failed to carry.
In January 2007, the Board granted a six-month extension of the special
exception—to close the Business—and again required that no vehicles be
stacked above the fence or be located outside of the fence. El Hamad had first
sought an additional two-year extension of the special exception and then
reduced his request to a one-year extension, stating that he had talked with the
people that lived in the area and that they were willing “to say they will
two years.
F ORT W ORTH, T EX., C ITY C ODE app. A., O RD. 13896 § 5.141 (2009), available at
http://www.municode.com/resources/gateway.asp?pid=10009&ekmensel=
c582fa7b_21_o_btnlink.
3
… At the January 2006 hearing, the chairperson of the Morningside
Neighborhood Association spoke in opposition to the special exception, claiming
that the Business was not compatible with new economic development
occurring south of the Property. One of the board members noted that the
comprehensive plan for the area showed that the use was compatible, but
observed, “probably[] building these new homes has happened since [our last]
comprehensive plan.” Another opponent, the president of the Glencrest Civic
League (and also a board member of the United Communities Association)
spoke against the special exception, stating that the stretch of Riverside Drive
where the Property was located “serves as a major entry point into several
existing neighborhoods.”
3
compromise for one more year with [him].” 4 He informed the Board that it
would take him that long to close up the Business, but when asked by a board
member how long it would take to shut down his operation if he did not get the
extension, he also stated, “I don’t know. Maybe a couple of months.”
In September 2007, the Board denied El Hamad’s request for a two-year
extension of the special exception.5 El Hamad filed an original petition and writ
4
… El Hamad stated, “[T]here is about five or six junkyards in the area on
the same street in about a two or three mile radius. . . . [B]ut there is a lot of
new homes also being built in that neighborhood and a lot of improvements.
. . . I’m willing to compromise with, you know, the community and the
churches and everybody.” A board member with the United Neighborhood
Association of South Fort Worth (who was also past president of the Glencrest
Civic League) indicated that he wanted some sort of assurance that the
Business would shut down after a year, and a Morningside Neighborhood
Association member stated that the Business presented a health hazard to
neighboring residential areas.
5
… A member of the Morningside Neighborhood Association spoke against
the extension of the special exception, stating that a junkyard did not fit in with
the community revitalization and “asking this be the last time that we have to
continue to come before you to shut this type of business down in our
community.” A member of the steering committee of the Southwest Weed and
Seed (a federally funded crime prevention and intervention program), who was
also on the Board of Directors of Southeast Fort Worth, Incorporated, stated
that El Hamad had never approached either of those organizations. In response
to a Board member’s question about whether El Hamad could live with a period
shorter than two years, El Hamad’s counsel stated, “My client can certainly live
with whatever the board proceeds with. And if there are development plans
ongoing for this area, that may make sense.” He gave the Board an update on
the status of the residential development to the south of the Property, stating
that fifteen to twenty homes had already been constructed and that he thought
people were already living in a few of them.
4
of certiorari in the trial court, protesting this denial, attributing it to the
“substantial neighborhood opposition” of people seeking to make the area more
residential, alleging that the Board had exceeded its authority by improperly
attempting to rezone the area on the basis of political pressure, and asserting
that he was unfairly treated because “the Board has recently granted extensions
of ten (10) years to similar activities in the surrounding area.” See Tex. Loc.
Gov’t Code Ann. § 211.011 (Vernon 2008); see also Sw. Paper Stock, Inc. v.
Zoning Bd. of Adjustment of City of Fort Worth, 980 S.W.2d 802, 805 (Tex.
App.—Fort Worth 1998, pet. denied) (explaining procedure under section
211.011 for challenging action by board of adjustment).
The Board filed a verified return with its motion for summary judgment,
including the transcripts of the Board’s hearings on all three of El Hamad’s
applications, and it filed objections to the affidavit El Hamad relied upon in his
response to the Board’s motion for summary judgment. The Board also
included with its objections an affidavit by Dana Burghdoff, the Board’s
executive secretary and a deputy director in the City’s planning and
development department, which El Hamad did not object to. Burghdoff stated
(with attached supporting documents) that the two businesses in the area that
received ten-year extensions had different zoning (K-zoning) than El Hamad’s
Property, that property zoned “K” allows for ten-year extensions, and that
5
property zoned “I” does not.6 The trial court sustained the Board’s objections
to El Hamad’s affidavit, and it granted the Board’s motion for summary
judgment. This appeal followed.
III. El Hamad’s Issues
El Hamad argues that the Board’s summary judgment had no legitimate
support on either the facts or the law and that the denial of his requested
special exception was an improper action that arbitrarily reversed the Board’s
prior decisions and created “a new policy/legislation with regards to the proper
zoning in this area, far beyond its grant of authority under State law.” In his
first three issues, he specifically complains that he should not have been denied
a special exception because: (1) the trial court applied the incorrect standard
of review to his writ of certiorari appealing the denial of his special exception;
(2) the Board’s actions were improper because they were essentially legislative
6
… See also F ORT W ORTH, T EX., C ITY C ODE app. A., O RD. 13896 § 5.141(C)
(stating that in the “K” district, the first approval of a special exception shall be
limited to a period not to exceed ten years and each subsequent extension shall
also not exceed ten years). El Hamad’s counsel at the September 2007 hearing
demonstrated his awareness of the zoning differences, noting,
[W]hat struck me about this case was the adjacent property which
is up here, this Action Auto [another junkyard]. It is in a different
zoning district. It’s in K. It came before this board in 2004 and
received an exceptional variance [sic] for 10 years. The property
next door, the neighbor, if you will, is Mr. Hamad’s property. It’s
in “I,” but it operates the same type of business.
6
in nature, thereby breaching the statutory framework limiting the methods by
which zoning may be changed; and (3) the Board’s actions were arbitrary and
capricious because the use in question had not changed, it was a conforming
use, the Board had granted numerous extensions for the use and similar
activities, and the denial was triggered by political protests.7 In his fourth
issue, he complains that the trial court erred by excluding “various items” in his
affidavit.
IV. Discussion
A. Standard of Review
The appropriate standard of review with regard to a board of adjustment’s
order is “whether the board of adjustment has abused its discretion, i.e.,
whether it has acted without reference to guiding rules and principles or
whether it has acted arbitrarily and unreasonably.” W. Tex. Water Refiners v.
S & B Beverage Co., 915 S.W.2d 623, 626 (Tex. App.—El Paso 1996, no
writ).
A board’s order carries the presumption of legality, and the party
attacking it bears the burden of establishing its illegality. Id.; see also Pick-N-
7
… The Board rephrases El Hamad’s first three issues as, “[T]he Board
abuse[d] its discretion when it denied him a third request within twenty months
for a special exception to operate a motor-vehicle junkyard.”
7
Pull Auto Dismantlers v. Zoning Bd. of Adjustment of City of Fort Worth, 45
S.W.3d 337, 339–40 (Tex. App.—Fort Worth 2001, pet. denied).
The issue of whether a board abused its discretion is a question of law
appropriately determined by summary judgment. Pick-N-Pull Auto, 45 S.W.3d
at 340. In a summary judgment case, the issue on appeal is whether the
movant met the summary judgment burden by establishing that no genuine
issue of material fact exists and that the movant is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979). The burden of proof is on the movant, and all
doubts about the existence of a genuine issue of material fact are resolved
against the movant. Sw. Elec. Power Co., 73 S.W.3d at 215. Here, we must
determine whether the Board proved as a matter of law that it did not abuse its
discretion—that is, if there is some evidence of substantive and probative
character supporting the Board’s decision, the trial court did not abuse its
discretion by granting the Board’s motion for summary judgment. See Pick-N-
Pull Auto, 45 S.W.3d at 340.
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B. Analysis
In Pick-N-Pull, this court concluded that the board, as factfinder, did not
abuse its discretion by denying a special exception sought by an automobile
dismantling business in light of conflicting evidence presented by the business
(that it would be a good neighbor) and by its neighbors (letters expressing
compatibility concerns). Id. at 340–41.
Having reviewed the entire record, we conclude, as we did in Pick-N-Pull,
that as a matter of law the Board, as factfinder, did not abuse its discretion by
denying El Hamad’s special exception when it denied an extension of the
special exception after considering both El Hamad’s testimony (that the
Business was a good neighbor) and that of his neighbors (that the Business was
no longer compatible with the surrounding area). 8 See id.; see also Sw. Paper
8
… Based on the record before us, we cannot agree with El Hamad’s
statement in his brief that,
The Board itself had previously imposed standards on this business
and similar businesses in the area so the issue of incompatibility
had been previously used and addressed and found to be something
which could be resolved by certain ameliorating activities rather
than this sudden change to simply deny the possibility of having
such activities because of political pressure and a wish to change
the fundamental issues of land use and thereby thwart the rules
imposed by the City Council and the Legislature. [Emphasis added.]
Before the vote in September 2007, one of the Board members made the
following comments in response to El Hamad’s counsel’s “comment about the
9
Stock, 980 S.W.2d at 808 (“[T]he Board may not grant a special exception
unless it determines that the proposed use is compatible with the use of the
neighboring property.”).
Furthermore, we cannot say that the trial court abused its discretion by
sustaining the Board’s objections to El Hamad’s affidavit. See In re J.P.B., 180
S.W.3d 570, 575 (Tex. 2005) (“We review a trial court’s decision to admit or
exclude evidence for an abuse of discretion.”). Given that the summary
judgment issue before the trial court was whether the Board abused its
discretion by denying El Hamad’s special exception application based on
compatibility, we cannot say that the trial court abused its discretion by
sustaining the Board’s relevance objections to El Hamad’s statements about
compliance, to his allegations about the two similar nearby businesses (the two
other businesses in the neighborhood and how long they have to go on their
permits,” stating that the Property
is immediately north of that residential development to the south.
The others, as I understand it, are further to the north, north of
your client’s property, and they . . . are not abutting or adjoining
the residential development.
So because this one does abut the residential development as
I understand it, I will not support the motion to grant even a one-
year extension.
10
K-zoned businesses) receiving ten-year extensions on their special exceptions,
or to his other statements that essentially duplicated the hearing testimony. 9
Finally, to the extent that we have not addressed all of El Hamad’s
arguments, we overrule them as inadequately briefed.10 See Tex. R. App. P.
38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279,
9
… In response to El Hamad’s statement that his position was not
substantially different “at all” from the position he took at the hearing, the trial
court asked, “Why should I consider it when I’ve got the transcript of the
hearing?”
10
… An appellate court is not required to search the appellate record, with
no guidance from the briefing party, to determine if the record supports the
party’s argument. See Hall v. Stephenson, 919 S.W.2d 454, 466–67 (Tex.
App.—Fort Worth 1996, writ denied). Furthermore, “we know of no authority
obligating us to become advocates for a particular litigant through performing
their research and developing their argument for them.” Tello v. Bank One,
N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(internal quotation omitted). Thus, inadequately briefed issues may be waived
on appeal. Hall, 919 S.W.2d at 467.
Although El Hamad presents four issues for our review, he cites only one
case—West Texas Water Refiners—and only in the discussion of his first issue,
for the proposition that the Board may not impose more terms or change
anything other than simply determining compatibility. 915 S.W.2d at 626. We
note that the Board did not impose any terms or conditions when it denied El
Hamed’s application in September 2007—the only order from which El Hamed
appealed first to the trial court, and now to this court. El Hamad also makes
passing references to local government code sections 211.008 through
211.011 in his first issue and to the Fourth and Fourteenth Amendments to the
United States Constitution in his third issue, but it is unclear how these
provisions support his arguments.
11
284–85 (Tex. 1994) (discussing “long-standing rule” that point may be waived
due to inadequate briefing).
For the foregoing reasons, we overrule El Hamad’s four issues.
V. Conclusion
Having overruled El Hamad’s four issues, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.
DELIVERED: May 14, 2009
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