                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 JUAN MANUEL TELLEZ,                                             No. 08-03-00294-CV
                                                 §
                         Appellant,                                   Appeal from
                                                 §
 v.                                                           County Court at Law No. 5
                                                 §
 CITY OF SOCORRO,                                              of El Paso County, Texas
                                                 §
                         Appellee.                                 (TC # 2002-2614)
                                                 §

                                          OPINION

       Juan Manuel Tellez appeals a final judgment affirming the decision of the Socorro Board of

Adjustment. On original submission, we dismissed the suit sua sponte for lack of subject-matter

jurisdiction. Tellez v. City of Socorro, 164 S.W.3d 823, 830 (Tex.App.--El Paso 2005). The

Supreme Court reversed that decision and remanded for further proceedings. Tellez v. City of

Socorro, 226 S.W.3d 413 (Tex. 2007). Having reviewed the record and finding no abuse of

discretion, we affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Tellez owns and operates Tellez Motors, a business which sells salvaged cars and auto parts.

Established in 1982, the business is located at 11143 Alameda. In June 1988, Tellez purchased

adjacent property at 208 Midnight Sun. This new property was not zoned at the time of purchase,

and Tellez understood that only pigs were prohibited on the land. Tellez stored salvaged autos and

parts on the lot. A small cinder-block structure is also located on the property. At one time, Tellez

allowed a company to park its trucks on the Midnight Sun property, but he continued to store auto

parts on the lot. Business continued as usual, and the trucks could only park wherever space was
available. Although Tellez did not lease the property, he admitted receiving payment for allowing

the company to park its trucks there.

       On May 1, 1989, the City of Socorro enacted Ordinance No. 76 to establish comprehensive

zoning and land use regulations. See SOCORRO , TX ., ORDINANCE NO . 76 (1989). Pursuant to this

ordinance, the Midnight Sun property was designated as R-1 Single Family zone. On the same day,

the City enacted Ordinance No. 75 which provided that wrecking or junkyards could only be located

in M-2 Heavy Industrial zones. SOCORRO , TX ., ORDINANCE NO . 75 (1989). Ordinance No. 75

expressly applied to all wrecking or junkyard premises in existence prior to May 1, 1990. Id.

       In 1996, the City began sending Tellez notices of zoning violations alleging that he was

storing junk in a residential lot. Tellez spoke with Reyes Fierro, the Planning Director for the City,

who advised Tellez that he had to prove a legal non-conforming use. He suggested that Tellez

produce documentation showing he paid commercial taxes on the Midnight Sun property. According

to Fierro, this would have been sufficient to establish a legal non-conforming use because Tellez’s

business was established before the property was zoned R-1. But the appraisal district records

revealed that the lot was listed as vacant residential rather than commercial property. Fierro also

reviewed aerial photographs to determine whether the property was being used as an auto salvage

yard prior to the zoning change, but the photographs did not support such a conclusion.

Consequently, the Midnight Sun property did not qualify as a legal non-conforming use. Fierro

advised Tellez that he could request that the property be re-zoned, but when Tellez submitted an

application to re-zone his property from R-1 Single Family Residential to M-2 Heavy Industrial, the

Planning Commission denied the request. The City Council then heard and denied his appeal.

Finally, the Board of Adjustment voted to deny the re-zoning request.

       Tellez filed a petition for writ of certiorari in County Court at Law No. 5 of El Paso County
alleging that the use of the premises as an auto salvage yard prior to May 1, 1989 constituted a legal

non-confirming use. The court did not issue a writ of certiorari for the records of the Board of

Adjustment and the Board did not voluntarily forward its record to the reviewing court. At trial, the

court heard the testimony of several witnesses appearing on behalf of Tellez and the Board of

Adjustment and entered judgment affirming the Board’s decision. Tellez timely filed notice of

appeal.

                            DENIAL OF NON-CONFORMING USE

          In his sole issue on appeal, Tellez complains that the County Court at Law abused its

discretion by denying him a non-conforming use of his property. The City responds that the only

issue before the court below was whether the Board of Adjustment abused its discretion by denying

a request for legal non-conforming status of the Midnight Sun property.

                            Scope of Review in the County Court at Law

          Tellez frames his issue for review as though the County Court at Law conducted a trial de

novo and had authority to grant his request for a non-conforming use. This is contrary to the

established procedure for certiorari review of decisions of a board of adjustment.

          A board of adjustment is a quasi-judicial body. Board of Adjustment of the City of Corpus

Christi v. Flores, 860 S.W.2d 622, 625 (Tex.App.--Corpus Christi 1993, writ denied). A person

aggrieved by a decision of the board of adjustment may present to a district court, county court,

or county court at law a verified petition alleging that the decision of a board of adjustment is

illegal in whole or in part and specifying the grounds of illegality. TEX .LOC.GOV ’T CODE ANN .

§ 211.011(a)(1)(Vernon 2008). Upon presentation of the petition, the reviewing court may grant a

writ of certiorari directed to the board. TEX .LOC.GOV ’T CODE ANN . § 211.011(c). The writ of

certiorari is the method by which the court conducts its review. Davis v. Zoning Bd. of Adjustment
of the City of La Porte, 865 S.W.2d 941, 942 (Tex. 1993). Its purpose is to require the board of

adjustment to forward to the court the record of the particular decision being challenged. Id.; see

City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 70 (1945). If the trial court

grants the petition for writ of certiorari, the board of adjustment must submit the record of its

decision or “return,” and the return “must concisely state any pertinent and material facts that show

the grounds of the decision under appeal.” TEX .LOC.GOV ’T CODE ANN . § 211.011(c), (d). Although

the reviewing court is authorized to hear evidence necessary for the proper disposition of the matter1,

the court sits only as a court of review. Pick-n-Pull Auto Dismantlers v. Zoning Board of Adjustment

of the City of Fort Worth, 45 S.W.3d 337, 340 (Tex.App.--Fort Worth 2001, pet. denied). Review

of the board’s decision is not a trial de novo. See Boehme Bakery, 190 S.W.2d at 70. The reviewing

court may reverse or affirm, in whole or in part, or modify the decision that is appealed.

TEX .LOC.GOV ’T CODE ANN . § 211.011(f).

         The only question that may be raised by a petition for writ of certiorari is the legality of the

board of adjustment’s order. Pearce v. City of Round Rock, 78 S.W.3d 642, 646 (Tex.App.--Austin

2002, pet. denied), citing City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 69

(1945); Pick-n-Pull Auto Dismantlers, 45 S.W.3d at 340. We apply a legal presumption in favor of

the board of adjustment’s order and the party attacking it has the burden of establishing that the

board clearly abused its discretion. See Pick-n-Pull Auto Dismantlers, 45 S.W.3d at 340. To

establish an abuse of discretion, the contesting party must demonstrate that the board acted arbitrarily

and unreasonably, without reference to any guiding rules or principles. Id., citing Garcia v.


         1
            Section 211.011(e) provides: “If at the hearing the court determines that testimony is necessary for the proper
disposition of the matter, it may take evidence or appoint a referee to take evidence as directed. The referee shall report
the evidence to the court with the referee’s findings of fact and conclusions of law. The referee’s report constitutes a part
of the proceedings on which the court shall make its decision.” T EX .L O C .G O V ’T C O D E A N N . § 211.011(e).
Martinez, 988 S.W.2d 219, 222 (Tex. 1999).

                                    Scope of Appellate Review

       Although this is an appellate review of an agency’s action, we do not employ the substantial

evidence standard of review in reviewing the Board of Adjustment’s denial of non-conforming use.

Nu-Way Emulsions, Inc. v. City of Dalworthington Gardens, 617 S.W.2d 188, 189 (Tex. 1981). In

this quasi-administrative appeal, we review the legality of the Board’s decision to determine whether

the County Court at Law abused its discretion in affirming the Board’s order. See Pearce, 78 S.W.3d

at 646-47. Like the reviewing court below, we are limited to determining whether the Board of

Adjustment abused its discretion by denying Tellez’s request for a non-conforming use. See Flores,

860 S.W.2d at 626, citing Boehme Bakery, 190 S.W.2d at 70. We presume the challenged order to

be valid and we examine the entire record. See Pick-n-Pull Auto Dismantlers, 45 S.W.3d at 340;

Flores, 860 S.W.2d at 626. If the evidence as a whole is such that reasonable minds could have

reached the same conclusion as that made by the Board of Adjustment, no abuse of discretion is

shown. Texans to Save the Capital, Inc. v. Board of Adjustment of the City of Austin, 647 S.W.2d

773, 777-78 (Tex.App.--Austin 1983, writ ref’d n.r.e.).
                                               The State of the Record

         Before considering the merits of the appeal, we must address the state of the record. The

County Court at Law, as the reviewing court, was required to consider the original papers before the

Board, as well as the evidence introduced during the hearing. See Boehme Bakery, 190 S.W.2d at

69. The record before us does not contain the Board of Adjustment’s records pertaining to the

decision to deny Tellez’s request for a non-conforming use. These records are absent for two

reasons. First, Tellez did not request and the trial court did not issue a writ of certiorari directed to

the Board of Adjustment to review its decision and neither the City nor the Board voluntarily filed

a verified return stating any pertinent and material facts showing the grounds of the decision. See

TEX .LOC.GOV ’T CODE ANN . § 211.011(c), (d).2 Second, Tellez objected at trial when the City

offered into evidence the minutes of the Board of Adjustment which would have shown the evidence

relied upon by the Board in making its decision. The City withdrew its offer, noting that it was

Tellez’s burden to establish that the Board of Adjustment did not have sufficient evidence before it

to make the challenged decision.

         The City was correct in its observation as to which party had the burden to present the

evidence considered by the Board of Adjustment. Because the writ of certiorari was not requested

or issued, Tellez had the burden of providing a sufficient record at the hearing to determine the

illegality of the Board of Adjustment’s decision. Cf. Nussbaum v. City of Dallas, 948 S.W.2d



         2
            In an appeal involving a similar statute, Section 214.0012 of the Local Government Code, we have held that
failure to both file the petition for writ of certiorari and request issuance of the writ of certiorari is jurisdictional.
Martinez v. City of El Paso, 169 S.W .3d 488, 492 (Tex.App.--El Paso 2005, pet. denied). W hile timely filing the petition
for writ of certiorari is necessary to invoke the subject matter jurisdiction of the reviewing court under both Section
214.0012 and Section 211.011, requesting issuance of the writ is not jurisdictional. Davis v. Zoning Board of Adjustment
of the City of LaPorte, 865 S.W .2d 941, 942 (Tex. 1993); Teague, 190 S.W .3d at 820. W hether the writ is requested
and issued affects only whether there is a record for the trial court to review, not whether the trial court has jurisdiction
over the cause of action. Teague, 190 S.W .3d at 820. Accordingly, we disavow that portion of Martinez which states
that requesting issuance of the writ of certiorari is necessary to invoke the jurisdiction of the reviewing court.
305, 307 (Tex.App.--Dallas 1996, no writ)(holding that under TEX . LOC. GOV ’T CODE ANN .

§ 214.0012(a), where appellant failed to request writ of certiorari and no evidence existed in record,

the presumption of validity required that the order be upheld). If there is no record of the board’s

decision for the trial court to review, the court must presume that the board’s decision is valid and

uphold it. See Teague v. City of Jacksboro, 190 S.W.3d 813, 820 (Tex.App.--Fort Worth 2006, pet.

denied); Nussbaum, 948 S.W.2d at 308. Tellez not only failed to present the evidence considered

by the Board of Adjustment, he objected when the City offered the Board’s minutes into evidence.

When the trial court denied its motion for directed verdict, the City presented witness testimony

concerning the evidence the Board of Adjustment considered in ruling on Tellez’s request.

Consequently, Tellez’s failure to insure that the reviewing court had a sufficient record before it is

not fatal to his appeal because the County Court at Law had the necessary evidence before it to

consider whether the Board of Adjustment abused its discretion.

                                       Non-Conforming Use

       Under the common law, a non-conforming use of land or buildings is a use that existed

legally when the zoning restriction became effective and has continued to exist. City of University

Park v. Benners, 485 S.W.2d 773, 777 (Tex. 1972). When determining whether there is a legal non-

conforming use in a particular case, the proper focus is on the legislative enactments of the

regulation body. See Board of Adjustment of the City of San Antonio v. Wende, 92 S.W.3d 424, 431

(Tex. 2002). The City of Socorro’s interpretation of non-conforming use is consistent with the

common law. City of Socorro Ordinance No. 76 defines numerous terms, including non-conforming

use. It provides that non-conforming use means the use of land or a building, or a portion thereof,

which does not conform with the current land use regulations of the zoning district in which it is

located. SOCORRO , TX ., ORD . No. 76, Section 17 (86). Under Ordinance No. 76, a legal non-
conforming use which existed prior to the enactment of a regulation is permitted to continue but

cannot be expanded or enlarged. SOCORRO , TX ., ORD . No. 76, Section 6. Consistent with common

law, Ordinance No. 76 also requires that the non-conforming use be continuous. Ordinance No. 76

addresses two situations in which non-conforming use status is lost. Section 6, subsection 3 pertains

to non-conforming uses of land with minor structures with a replacement cost of less than $1,000.

SOCORRO , TX ., ORD . No. 76, Section 6(3). It provides that if the non-conforming use ceases for any

reason for more than thirty days, any subsequent use must conform to the existing regulations for the

property. Id. Section 6, subsection (5)(e) pertains to non-conforming use where there is a structure

on the premises with a replacement cost of more than $1,000. SOCORRO , TX ., ORD . NO . 76,

Section 6(5)(e). Under this subsection, when a non-conforming use is discontinued or abandoned

for six consecutive months or for eighteen months during any three-year period, any subsequent use

of the premises must conform to the existing regulations. Id.

       In support of his assertion that he is entitled to a legal non-conforming use, Tellez places

significant reliance on an April 4, 2002 memorandum from the former City Attorney, R. Contreras,

to the mayor, the City Council, and Fierro. In that memo, Contreras related that Tellez “claims to

have used the property for salvage yard purposes” and that he had advised Tellez to locate some

aerial maps supporting his statement. Contreras also stated that if Tellez’s position could not be

contradicted by the Planning Department, “it appears that the rear property likely is protected under

the grandfathering provisions of our ordinance.” While the memo reflects the former City Attorney’s

legal opinion about the application of Ordinance No. 76 to the facts, it is not binding on the Board

of Adjustment.

       Tellez and other witnesses testified that he had used the Midnight Sun property since 1988

for his auto salvage business. Elfida Gutierrez testified that she is familiar with Tellez’s property
because she owns property on Midnight Sun and has lived there since 1976. She claimed that

Tellez’s Midnight Sun property was completely vacant from 1990 until 1997 and that it had only a

small cinder-block “shack” on it. A 1991 aerial photograph of the Midnight Sun property3 showed

that it was vacant except for a trailer or small structure. Gutierrez recalled that the company which

installed the water and sewer lines in the area several years earlier had parked its trucks on Tellez’s

property. Reyes Fierro, the Planning Director for the City of Socorro, testified that Tellez told him

that he had allowed the Midnight Sun property to be used as a construction site in 1995 and 1996

when the sewer and water connections were being made in the area.

         The Board of Adjustment heard conflicting evidence as to whether the Midnight Sun property

was being used as a wrecking or junkyard at the time Ordinance Nos. 75 and 76 were enacted. A

board of adjustment does not abuse its discretion by basing its decision on conflicting evidence.

Southwest Paper Stock, Inc. v. Zoning Board of Adjustment of the City of Fort Worth, 980 S.W.2d

802, 805 (Tex.App.--Fort Worth 1998, pet. denied). Even if the evidence conclusively established

that the Midnight Sun property was being used as a salvage yard on May 1, 1989, there is conflicting

evidence whether the Midnight Sun property was continuously used as a junkyard after May 1, 1989

as required to maintain the non-conforming use status. The court below specifically found that the

1991 aerial photograph admitted into evidence showed the property was vacant. Consistent with this

evidence, the property was listed on the appraisal district’s records as vacant residential. Because

there is no evidence of the replacement cost of the small cinder-block structure located on the

Midnight Sun property, it is unclear whether subsection 3 or 5 would apply. However, there is



         3
            In his brief, Tellez asserts that the City did not establish that the photograph was actually taken in 1991. To
the extent Tellez is raising a complaint about the admissibility of the photograph, it is waived because he failed to object
below. T EX .R.A PP .P. 33.1; T EX .R.E VID . 103(a)(1). Further, Reyes Fierro affirmatively identified the photograph as a
1991 aerial.
evidence from which the Board of Adjustment could have found that the property was vacant for

more than six months, and therefore, it could have concluded that the non-conforming use status had

been lost under either subsection.

       Because Tellez failed to carry his burden of establishing that the Board of Adjustment abused

its discretion by denying his request for a non-conforming use, we overrule his sole issue for review

and affirm the judgment.



March 5, 2009
                                                      ANN CRAWFORD McCLURE, Justice

Before McClure, Ables, JJ, and Barajas, C.J. (Ret.)
Ables, J., sitting by assignment
Barajas, C.J. (Ret.), sitting by assignment
