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    Gary HENRY and Sheree Henry; Brenda Adams-Degraffenreid; Sean Adams and Meshanna Adams; Robert Allen; W. Marie Allen; Betty Andrews; Courtney Armstrong and Cheri Armstrong; Yaser Ayyoub and Sanna Ayyoub; Elizabeth Baker; Eric Bearden; et al., Appellants, v. KAUFMAN COUNTY DEVELOPMENT DISTRICT NO. 1, Appellee.
    No. 03-03-00549-CV.
    Court of Appeals of Texas, Austin.
    March 18, 2004.

      David A. Schiller, John D. Exline, Schiller, PLLC, Plano, Shannon H. Ratliff, Ratliff Law Firm, PLLC, Frank Oliver, Law Office of Frank Oliver, PC, J. Woodfin Jones, Alexander Dubose Jones & Townsend, LLP, Austin, for appellants.
    Larry F. York, Mary F. Keller, Scott K. Field, York, Keller & Field, LLP, Austin, for appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PATTERSON.
   OPINION

BEA ANN SMITH, Justice.

This case involves a dispute between Gary and Sheree Henry and other homeowners (collectively the Homeowners) and the Kaufman County Development District No. 1 (the District) over the validity of special assessments levied by the District against the Homeowners. The District was created under the County Development District Act (the Act) to “further[ ] the public purpose of developing and diversifying the economy of this state by providing incentives for the location and development of projects in certain counties to attract visitors and tourists.” See Tex. Loc. Gov’t Code Ann. §§ 383.001, .002, .021 (West 1999). The District levied the assessments to pay for infrastructure improvements of a residential subdivision in the District. The Homeowners appeal the district court’s summary judgment in favor of the District, ruling that its order levying the assessments was proper and authorized by statute. Because we hold that the District did not have the authority to levy special assessments, we reverse the district court’s summary judgment and remand this cause to the district court for further proceedings not inconsistent with this opinion.

BACKGROUND

The Act authorizes the commissioners court of a small or medium-sized county to create a “county development district” to provide incentives for the location and development of projects “to attract visitors and tourists.” See id. § 383.002. In 1996, a landowner in Kaufman County filed a petition with the commissioners court seeking the creation of such a district. See id. §§ 383.021, .022 (West 1999). The commissioners court accepted the petition and created the District, calling for an election to confirm the creation and approve a local sales and use tax to support it. See id. §§ 383.030, .101 (West 1999). The District’s creation and the sales and use tax were approved by a majority of the voting residents. See id. § 383.034 (West 1999).

Included with the landowner’s petition was a vaguely described project to be undertaken by the District: “the enhancement of land, building, equipment, facilities and improvements ... to promote and develop new or expanded business enterprises which will attract visitors to the District and result in employment and economic activity.” The estimated cost of the proposed project was $200,000,000, to include the construction of homes, a swim center, parks, lakes, office buildings, schools, a shopping center, water- and sewage-treatment facilities, streets, and a golf course.

In January 1999, a petition was submitted to the District by the owners of fifty percent or more of the assessed value of the property of the District, requesting the financing of certain services and improvements, known as the Capital Improvement Project (the Project), whose costs were estimated at $15,000,000. The Project encompassed road improvements, soil and erosion control, and similar infrastructure improvements for a residential subdivision located in the District. The District provided public notice in the Dallas Morning News of a public hearing to be held in February 1999 to consider the advisability of the requested improvements and the possibility of financing them with assessments. In July 1999, after public notice and the hearing, the District’s board reduced the cost of the Project to $9,000,000 and levied special assessments against certain property in the District. The assessments were levied according to the value of the improved property as determined by the District’s board and ranged from $9,977 for a 50-foot wide lot to $17,949 for an 80-foot wide lot. The order allowed the assessments to be paid immediately or in annual installments until the year 2025. At that time, the assessed property contained no street improvements or houses, but it had been platted into lots. The District filed the amount of the assessments for every subject parcel in the Kaufman County deed records. The lots were subsequently sold to the Homeowners, who now contest the District’s authority to levy the assessments.

After the assessment order was entered, the District entered into a lease-purchase agreement with the KCDDl-Fel Corporation, which agreed to lease the Project to the District and advance the funds necessary to finance it. The District in exchange pledged the assessments it would collect from the Homeowners as lease payments to the corporation.

The Homeowners filed suit against the District in Kaufman County, seeking an injunction against the District’s attempts to collect the assessments and asserting various claims, including fraud, violation of their constitutional property rights, and intentional infliction of emotional distress. Three days later, the District filed a suit for declaratory and injunctive relief against the Homeowners in Travis County under chapter 1205 of the government code, seeking a declaration that its assessments were valid and enforceable pursuant to statutory authority. See Tex. Gov’t Code Ann. § 1205.021 (West 2000) (authorizing district to bring declaratory-judgment action to determine validity of public security and related assessment). The Travis County court abated the action in Kaufman County and then consolidated that action with the District’s declaratory-judgment suit.

The District moved for summary judgment, asserting that its assessments were valid because (1) the Act incorporated by reference the power to levy assessments contained in chapter 375 of the local government code, which deals with municipal management districts and specifically authorizes those districts to levy special assessments; (2) the Homeowners failed to exhaust administrative remedies before challenging the validity of the assessments; and (3) Senate Bill 1444, passed in 2001, retroactively validated the assessments. The Homeowners filed a cross-motion for summary judgment, asserting that the District lacked statutory authority to levy the special assessments, that the Homeowners were not required to exhaust administrative remedies, and that Senate Bill 1444 did not validate the assessments. The district court granted the District’s motion and denied the Homeowners’ motion, declaring the assessments to be valid, binding, enforceable and pursuant to proper statutory authority.

In five issues, the Homeowners assert on appeal that (1) the District failed to prove as a matter of law that it had the statutory authority to levy special assessments; (2) the District failed to prove as a matter of law that the assessments funding the infrastructure of a residential subdivision were for a proper and authorized project that would attract tourists; (3) there is a fact issue as to whether the District complied with mandatory statutory procedures in levying the assessments; (4) the Homeowners were not required to exhaust administrative remedies; and (5) the assessments were not validated by Senate Bill 1444, as claimed by the District.

DISCUSSION

Standard of review

The standard for reviewing a motion for summary judgment is well established: (i) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law; (ii) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (iii) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 645-46 (Tex.2000); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Basic Capital Mgmt. v. Dow Jones & Co., 96 S.W.3d 475, 480 (Tex.App.-Austin 2002, no pet.). The propriety of summary judgment is a question of law; therefore, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.-Austin 1999, no pet.). A court of appeals should consider all grounds presented by the movant for summary judgment that the trial court ruled on but may, in the interest of judicial economy, also consider other presented grounds on which the trial court did not rule. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996).

Exhaustion of administrative remedies

The District asserts that the Homeowners may not challenge the validity of the assessments because they failed to exhaust the administrative remedies of section 375.123 of the local government code, which provides the procedure by which a property owner may appeal a special assessment levied by a municipal management district. See Tex. Loc. Gov’t Code Ann. §§ 375.123, .124 (West 1999) (property owner must file notice of appeal with district’s board within thirty days after adoption of assessment and then may appeal board’s decision to court). Although the administrative remedies in section 375.123 on their face apply only to municipal management districts, not county development districts, the District bases its argument on the premise that the Act incorporates by reference the assessment power of municipal management districts and therefore, by implication, incorporates the procedures for challenging an assessment. See id. §§ 375.111, .123, .124, 383.061 (West 1999). The Homeowners counter that they were not required to exhaust administrative remedies prior to bringing this suit because the Act did not incorporate the assessment power, see discussion infra, and even if the Act did incorporate the power, it did not also incorporate the procedure for challenging an assessment. See id. More importantly, assert the Homeowners, it is well settled that a party need not exhaust administrative remedies when the issue before the court is a pure question of law. See Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 892 (Tex.1986), rev’d on other grounds, 856 S.W.2d 417 (Tex.1993); City of Austin v. Pendergrass, 18 S.W.3d 261, 264-65 (Tex.App.-Austin 2000, no pet.).

The sole issue presented in this declaratory-judgment action is whether the assessments were validly levied pursuant to statutory authority. This is purely a question of law, and the answer is disposi-tive of that issue. Although the Homeowners assert two other reasons that involve mixed questions of law and fact for why the assessments are invalid — that they would be used for an unlawful purpose and that the District failed to comply with mandatory statutory procedures in ordering their levy — the Homeowners pled them in the alternative, and we need not reach them if we hold that the assessments are invalid as a matter of law. Furthermore, we agree with the Homeowners that although the Act incorporates the “powers” of a municipal management district, it does not also incorporate the “procedures” or “remedies” of chapter 375. Section 383.061 of the Act is clear: a county development district “has the powers of a municipal management district.” See id. § 383.061(b) (emphasis added). The Act does not incorporate “the procedures in chapter 375 relating to the challenge of an assessment” or anything similar. We will not read into the Act a provision that is not there. See In re Bell, 91 S.W.3d 784, 790 (Tex.2002) (Courts should not insert words into a statute except to give effect to clear legislative intent.). The Homeowners were not required to exhaust administrative remedies prior to seeking a declaration that the assessments were invalid for lack of statutory authority. We sustain the Homeowners’ fourth issue.

Special assessments

The Homeowners assert that the District did not have statutory authority to levy the assessments. They argue first that the Act, which authorizes and governs county development districts, does not itself provide any authority to levy assessments. Therefore, the only possible authority for the assessments must derive from section 383.061(b) of the Act, which provides that a county development district “has the powers of a municipal management district created under Chapter 375 [of the local government code] to the extent not inconsistent with this chapter.” Tex. Loc. Gov’t Code Ann. § 383.061(b). Section 375.111 provides that a municipal management district “may levy and collect special assessments.” Id. § 375.111. The Homeowners insist that this incorporation by reference of the powers of chapter 375 does not confer on a county development district the power to levy special assessments for two reasons: (1) the levying of a special assessment is a function of the taxing power of a governmental unit, and such power must be “plainly and unmistakably conferred,” see State v. Houston & Tex. Cent. Ry., 209 S.W. 820, 822 (Tex.Civ.App.-Galveston 1918, no writ) (quoting Brown v. Graham, 58 Tex. 254, 256 (1883)), and (2) the power to levy special assessments is inconsistent with the Act.

The Homeowners principally rely on an attorney general opinion holding that the Act does not authorize a county development district to levy an ad valorem tax. See Op. Tex. Att’y Gen. No. JC-0291 (2000) (hereinafter cited as AG Opinion). Although attorney general opinions are not binding on this Court, we consider them highly persuasive authority and accordingly give them due consideration. Hardin County Cmty. Supervision & Corr. Dep’t v. Sullivan, 106 S.W.3d 186, 189-90 (Tex.App.-Austin 2003, pet. denied); Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 159 (Tex.App.-Austin 2001, no pet.).

The AG Opinion begins with a review of the Act. The statement of legislative intent provides that the Act “furthers the public purpose of developing and diversifying the economy of this state, by providing incentives for the location and development of projects in certain counties to attract visitors and tourists.” See Tex. Loc. Gov’t Code Ann. § 383.002. The legislative findings include the following: “Small and medium-sized counties in this state ... are at a disadvantage in competing with counties in other states for the location and development of projects that attract visitors.” See id. § 383.003 (West 1999).

Section 383.061 of the Act outlines the powers and duties of a county development district. See id. § 383.061. The powers include the ability to “acquire and dispose of projects” and “the powers of a municipal management district created under Chapter 375 to the extent not inconsistent with this chapter.” Id. “Projects,” as defined under section 4B(a)(2) of the Development Corporation Act of 1979, broadly include land, buildings, equipment, facilities, and improvements that pertain to a multitude of purposes, including entertainment, tourism, business enterprise, affordable housing, water-supply facilities, and water-conservation programs. Id. § 383.004(8); see Tex.Rev.Civ. Stat. Ann. art. 5190.6, § 4B(a)(2) (West Supp.2004). Subchapter E of the Act authorizes a county development district to issue bonds to defray the costs of a project, and Subchapter F expressly authorizes a district to impose a sales and use tax if approved by a majority of voters. See Tex. Loc. Gov’t Code Ann. §§ 383.081-.084, .101 (West 1999).

The inquiry that served as the basis for the AG Opinion was submitted by an official from Kaufman County in the wake of the District’s order levying these assessments. “While the AG Opinion addressed a county development district’s authorization to levy an ad valorem tax, in this dispute the question has been framed in terms of the District’s authority to levy a special assessment. But the analysis for both questions is grounded in the legal principle that a political subdivision of a state has no inherent power to levy taxes and that such power must be expressly granted by law. Ripley v. Trinity River Canal & Conservancy Dist., 88 S.W.2d 752, 756 (Tex.Civ.App.-Dallas 1935, writ refd). The taxing power may only be exercised by a political subdivision if the power has been expressly conferred by the constitution or legislation. Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 135 Tex. 280, 142 S.W.2d 945, 948 (1940). The power to tax must be “plainly and unmistakably conferred.” See Houston & Tex. Cent. Ry., 209 S.W. at 822. “The power to levy assessments for the construction of drains can be exercised only when granted in clear and unmistakable terms, and statutes purporting to grant such power must be strictly construed as against those asserting the right to exercise it.” Mann, 142 S.W.2d at 948 (quoting Dallas Consol. Elec. St. Ry. Co. v. City of Dallas, 260 S.W. 1034, 1036 (Tex. Comm’n App.1924, judgm’t adopted).

But, insists the District, the Mann line of cases does not apply because a special assessment is simply not a tax. For this proposition it cites City of Wichita Falls v. Williams, 119 Tex. 163, 26 S.W.2d 910, 911 (1930), which noted that “the word ‘taxes’ ... refers to ordinary ad valorem taxes only and does not embrace special assessments.” Williams explained the difference between taxes — “the enforced proportional contribution of persons and property levied by authority of the state for the support of government and for all public needs” — and special assessments — charges imposed “upon the real or supposed benefit resulting from the improvement of the property on which the specific charge is laid.” Id. at 912 (quoting Taylor v. Boyd, 63 Tex. 533, 540-41 (1885)); see also Harris County v. Boyd, 70 Tex. 237, 7 S.W. 713, 714 (1888) (“Taxation is the enforced contribution of persons and property ‘levied by the authority of the State for the support of the government and for all public needs.’ ”). We agree that special assessments, by their very nature, are to be used for a limited, identified purpose rather than serve as general income to the government to be used “for all public needs.” Thus, we agree with the District that special assessments are not “taxes” in the strict sense of that word.

However, Williams relegated special assessments to the broad category of “taxation” when it said, “[s]pecial assessments, as distinguished from other kinds of taxation ....” Williams, 26 S.W.2d at 911 (emphasis added). That case also recognized that “the authority for making assessments ... is derivable from and in exercise of the taxing power.” See id. at 913 (quoting Roundtree v. City of Galveston, 42 Tex. 612, 625 (1875)); see also Boyd, 7 S.W. at 714 (“assessments ... are made under the power to tax — are an exercise of that power”). Moreover, Williams is inapplicable to this case because it dealt solely with the question of whether certain constitutional provisions relating to taxation carry over to special assessments; the Court was concerned that if “tax” as it appeared in the constitution included special assessments, “then special assessments would be limited in amount by the very terms found in the Constitution, and the improvement of the streets of our cities would be practically at an end.” Williams, 26 S.W.2d at 913. This case does not turn on the question of whether taxes and special assessments are one and the same but, rather, on whether special assessments are an exercise of the taxing power. As discussed above, we are persuaded by the Homeowners’ argument that the levying of an assessment is an exercise of the taxing power. See Houston & Tex. Cent. Ry., 209 S.W. at 822; Maverick County Water Control & Improvement Dist. No. 1 v. State, 456 S.W.2d 204, 206 (Tex.App.-San Antonio 1970, writ refd). Therefore, the power to assess must be clearly and unmistakably granted.

Nowhere in the Act is a county development district expressly authorized to levy assessments or ad valorem taxes. The only tax that the Act expressly authorizes a district to levy is a sales and use tax, with limitations that are laid out in great detail. See Tex. Loc. Gov’t Code Ann. §§ 383.030, .031, .033, .101, .102-.106 (West 1999). As the AG Opinion notes, “[t]he detailed provision in [the Act] for the sales and use tax suggests that the legislature did not intend county development districts to wield any other taxing authority.” AG Opinion at 3. The District would derive its authority to levy assessments through section 383.061, which incorporates by reference the “powers” of a municipal management district created under chapter 375. See Tex. Loc. Gov’t Code Ann. § 383.061. Chapter 375, subchapter E, entitled “Powers and Duties,” includes the power to levy ad valorem taxes to pay for roads. See id. § 375.091 (West 1999). Subchapter F, entitled “Assessments,” adds to those powers:

In addition to the powers provided by Subchapter E, the board of a [municipal management] district may undertake improvement projects and services that confer a special benefit on all or a definable part of the district ... [and] may levy and collect special assessments on property in that area, based on the benefit conferred.

Id. § 375.111 (emphasis added).

Despite the Act’s language incorporating the “powers” of chapter 375, the AG Opinion concluded that county development districts do not have the authority to levy ad valorem taxes. It noted that courts have insisted that the power to tax be expressly conferred and that the power to levy ad valorem taxes was not expressly conferred upon county development districts. Moreover, the detailed provisions restricting the power to impose sales and use taxes suggest that the legislature did not intend a district to “wield any other taxing authority.” See AG Opinion at 3. The Homeowners argue that imposing a special assessment is an exercise of the taxing power, that the incorporation by reference of the powers in chapter 375 was not sufficiently express to constitute “clear and unmistakable terms,” and that the power to levy must be construed against the District. See Mann, 142 S.W.2d at 947-48.

The District rejoins that although the power to tax must be expressly conferred, incorporation by reference is sufficient because “the adoption of an earlier statute by reference makes it as much a part of the later act as though it had been incorporated at full length.” Engel v. Davenport, 271 U.S. 33, 38, 46 S.Ct. 410, 70 L.Ed. 813 (1926); see B-R Dredging Co. v. Rodriguez, 564 S.W.2d 693, 696 (Tex.1978). The District further contends that if the power to assess were not incorporated, the reference to chapter 375 would have little or no meaning, and statutory language is presumed to have some meaning and should be given any reasonable interpretation that will do so. See Harris County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991).

We conclude that the reference has meaning without incorporating the power to assess because section 375.092 lists several other “specific powers” of a municipal management district for which there is no comparable provision in the Act. See Tex. Loc. Gov’t Code Ann. § 375.092 (West 1999). These specific powers include perpetual succession, acquiring and disposing of real and personal property, entering into contracts with the United States and its subdivisions, and procuring insurance as deemed advisable by the district’s board. See id.

Secondly, the Attorney General cited by analogy certain sections of chapter 376 (governing particular municipal management districts) in which the legislature has vested specific municipal management districts with the powers of a district created under chapter 375 but also with the express power to levy ad valorem taxes in accordance with chapter 375, concluding that “[i]f the legislature had intended to vest county development districts with the [same] authority ... it would have done so expressly, as it did in [those sections].” See AG Opinion at 4. The Homeowners cite these same sections of the local government code, including section 376.012, which provides: “(a) The [Houston Downtown Management District has ... (2) the rights, powers, privileges, authority, and functions of a district created under Chapter 375 ... [and] (5) the power to impose ad valorem taxes, assessments, or impact fees in accordance with Chapter 375 to provide improvements and services for a project or activity the district is authorized to acquire, construct, improve, or provide.” See Tex. Loc. Gov’t Code Ann. § 376.012 (West 1999); see also id. §§ 376.052, .090, .122, .221, (West 1999). The Homeowners note that if the sections’ broad incorporation of the powers of chapter 375 included the power to assess, it would have been unnecessary to state these powers again, individually. If the incorporation language referencing chapter 376 included the powers to levy assessments or ad valorem taxes, the subsection explicitly allowing districts to exercise those powers would be redundant and mere surplusage. A statutory construction that creates a redundancy is to be avoided. See Larry Koch, Inc. v. Tex. Natural Res. Conservation Comm’n, 52 S.W.3d 833, 837-38 (Tex.App.-Austin 2001, pet. denied). Section 376.012 and the other sections referenced above illustrate that the legislature specifically and expressly grants the power of taxation when it intends to do so.

The District, on the other hand, urges that when the legislature uses a general incorporation of powers but intends to exclude taxing authority, it specifically does so, citing several bills with language such as: “The [Salt Fork Water Quality District has all of the rights, privileges, powers, and duties provided by the general laws of this state ... applicable to special utility districts ... except that the district may not levy or collect taxes.” See Act of Apr. 22, 1999, 76th Leg., R.S., ch. 1139, § 6(b), 1999 Tex. Gen. Laws 4033, 4034 (emphasis added); see also Act of May 29, 1997, 75th Leg., R.S., ch. 1066, § 5, 1997 Tex. Gen. Laws 4059, 4059 (Guadalupe County Groundwater Conservation District has “all of the rights, powers, privileges, authority, functions, and duties provided by the general laws of this state, including Chapters 36 and 49, Water Code ... [but] may not impose a tax or fee”); Act of May 19, 1997, 75th Leg., R.S., ch. 589, § 6, 1997 Tex. Gen. Laws 2054, 2059 (Chambers County-Cedar Bayou Navigation District has all the powers of districts created under chapters 60,62, and 63 of the water code but does not have the power to levy ad valorem taxes unless they have been approved by a majority of voters.). Because we must narrowly construe the grant of taxing power, we resolve this dispute in favor of the Homeowners’ position. Moreover, we hold that the power to make special assessments is “inconsistent with” the Act, as discussed below.

The Homeowners note that if the incorporation by reference in section 383.061 broadly covered every conceivable power appearing in chapter 375, it would also incorporate the power to issue bonds appearing in section 375.201. See Tex. Loc. Gov’t Code Ann. § 375.201 (West 1999). However, the Act expressly grants a county development district the authority to issue bonds, but specifically incorporates sections 375.201 through 375.208, concerning the details of bond requirements, pledges, and refunds. See id. §§ 375.201-.208, 383.081 (West 1999). Again, the specific inclusion in the Act of the authority to issue bonds would be redundant if the “powers” incorporated earlier in the chapter already included that power. Such redundancy is an indication that we best fulfill legislative intent by narrowly construing the “powers of a municipal management district” incorporated by reference in section 383.061.

Finally, section 383.061(b) confers on county development districts “the powers of a municipal management district created under Chapter 375 to the extent not inconsistent with this chapter.” See id. § 383.061(b) (emphasis added). The Homeowners argue that the power to assess is inconsistent with the Act. The purpose of the Act is to “develop[] and diversify[] the economy of this state by providing incentives for the location and development of projects in certain counties to attract visitors and tourists ” because small and medium-sized counties are “at a disadvantage in competing with counties in other states for the location and development of projects that attract visitors.” See id. § 383.002, .003 (emphasis added). Clearly, the purpose of a county development district is to undertake projects that will attract tourists and visitors so that the economy will benefit. Projects undertaken to attract tourists and visitors are the type of projects authorized and countenanced by the Act, and the power to undertake such projects is specifically granted to county development districts. See id. § 383.061 (“district may acquire and dispose of projects”). Projects undertaken for other purposes would be, therefore, inconsistent with the chapter. Chapter 375 grants municipal management districts the power to undertake improvement projects and services that confer a special benefit on all or part of the district, and secondarily the power to levy assessments for such projects. See id. § 375.111. Because chapter 375 confers the power to assess for projects that are not within the scope of a county development district, that power is inconsistent with the Act. Furthermore, we agree with the Attorney General’s conclusion that the Act’s detailed provisions for sales and use taxes reveal a legislative intent that county development districts not “wield any other taxing authority.” See AG Opinion at 3. Inferring by reference a power to tax or levy assessments would interfere with the intentional and detailed taxation scheme set forth in the Act.

Because the power to levy assessments is not unmistakably conferred upon county development districts and because the power to levy assessments for projects that confer a special benefit could be inconsistent with the purposes of the Act, we hold that the District did not have statutory authority to levy the assessments. We sustain the Homeowners’ first issue.

Senate Bill 1444

The trial court noted the ground on which it granted summary judgment for the District — that it had statutory authority to levy the assessments under section 383.061 — and therefore did not rule on the District’s alternate ground — -that Senate Bill 1444 retroactively validated the assessments. However, we proceed to a discussion of this issue in the interest of judicial economy. See Cates, 927 S.W.2d at 625. One of the District’s arguments at district court was that Senate Bill 1444, adopted by the legislature in 2001, retroactively validated the assessments. See Act of May 26, 2001, 77th Leg., R.S., ch. 1423, § 42, 2001 Tex. Gen. Laws 5069, 5079 (validating and confirming acts of water districts taken within two years prior to act’s effective date of June 17, 2001). The Homeowners retort that the act applies only to “conservation and reclamation districts” and not to county development districts. The District rejoins that the phrase “conservation and reclamation districts” includes county development districts because the act applies to “conservation and reclamation district[s] created under Section 52, Article III, and Section 59, Article XVI, Texas Constitution,” and that county development districts “serve the purpose of Section 59, Article XVI, and Section 52, Article III, Texas Constitution.” See id. (emphasis added); Tex. Loc. Gov’t Code Ann. § 383.003(c).

The first constitutional provision cited in Senate Bill 1444 is broad and, on its own, could authorize various types of districts:

Under legislative provision, any county ... may issue bonds or otherwise lend its credit ... and levy and collect taxes to pay the interest thereon ... for the following purposes[: to improve rivers, creeks, and streams and construct and maintain pools, lakes, and reservoirs for irrigation and navigation purposes and to construct, maintain, and operate roads and turnpikes].

Tex. Const, art. 3, § 52(b). The second provision speaks directly to a particular kind of district but also about the general public interest in conserving and developing the state’s natural resources. It declares, “the conservation and development of all of the natural resources of this State ... [are] public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto” and “[t]here may be created ... conservation and reclamation districts” to accomplish the purposes of the amendment. Id. art. 16, § 59(a), (b). Thus, a “conservation and reclamation district created under” these two constitutional provisions must be a conservation and reclamation district that in some way conserves or develops natural resources while also improving or constructing waterways or roads. On the other hand, the legislative findings supporting the Act, which authorizes the creation of county development districts, state:

The creation of development districts is essential to the accomplishment of Section 52-a, Article III, Texas Constitution [legislature may provide for programs that further the purpose of development and diversification of the state’s economy], and to the accomplishment of the other public purposes stated in this chapter [developing and diversifying the economy of the state by providing incentives for projects that will attract visitors and tourists] and further serves the purpose of Section 59, Article XVI, and Section 52, Article III, Texas Constitution.

Tex. Loc. Gov’t Code Ann. § 383.003 (emphasis added).

Although a county development district may incidentally or further serve the public purpose of improving or constructing waterways or roads or conserving and developing natural resources, such overlap in purpose does not transform a county development district into a kind of district that it is not. County development districts are created under the Act; they are not created under section 52, article 3 and section 59, article 16 of the constitution just because their creation furthers the purpose of those provisions. Although some of the same constitutional language provides the impetus for the creation of two different kinds of districts' — county development versus conservation and reclamation — this does not mean that the districts are functionally equivalent. County development districts derive from a section of the constitution that specifically allows for their creation to support economic development. No part of the Act speaks to the purpose of conserving or reclaiming water and other resources— although a project of a county development district that happens to conserve or develop natural resources would certainly not be prohibited. Thus, because the legislation refers by name to a particular type of district created under particular constitutional provisions, it cannot include a different type of district created under a separate statute and pursuant to a different constitutional provision. Although one district may be “created under” a certain constitutional provision, while another district “further serves the purpose” of that same constitutional provision, they remain distinct.

Furthermore, the title of Senate Bill 1444 reveals an intent that it apply only to water districts: “An Act relating to the general powers and authority of water districts.” See Act of May 26, 2001, 77th Leg., R.S., ch. 1423, 2001 Tex. Gen. Laws 5069. Bills cannot contain more than one subject, and their titles shall give the public reasonable notice of that subject. See Tex. Const. art. III, § 35(a), (b). Although the District notes that no act of the legislature may be held void for a deficiency in title, Tex. Const. art. III, § 35(b), (c), Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex.2000), here the question is not whether Senate Bill 1444 is void, but whether it applies to county development districts. Because the legislature is presumed to have intended compliance with the constitution, see Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex.1990), we hold that Senate Bill 1444 does not apply to county development districts, but only to water districts, specifically conservation and reclamation districts. Therefore, Senate Bill 1444 did not retroactively validate the assessments levied here. We sustain the Homeowners’ fifth issue and hold that the assessments are invalid because they were neither authorized by incorporation nor retroactively validated. The trial court, therefore, erred in granting summary judgment for the District.

CONCLUSION

The Homeowners were not required to exhaust administrative remedies because the issue before the trial court was purely a question of law and because the Act did not incorporate the procedures of chapter 375. The District did not have statutory authority to levy special assessments against the Homeowners under the incorporation by reference in section 383.061 of the powers of chapter 375 because the special-assessment power is not unmistakably conferred and is inconsistent with the Act. Likewise, Senate Bill 1444, passed in 2001, did not retroactively validate the District’s special assessments because the bill applied only to conservation and reclamation districts, not county development districts. The trial court, therefore, erred in granting summary judgment in favor of the District and against the Homeowners. We hold that the Homeowners were entitled to summary judgment in their favor that the order levying the assessments was invalid. However, because the trial court’s order ruled on other issues not before us on appeal, we remand this cause for further proceedings not inconsistent with this opinion.

APPENDIX

LIST OF APPELLANTS

Gary Henry and Sheree Henry

Brenda Adams-Degraffenreid

Sean Adams and Meshanna Adams

Robert Allen

W. Marie Allen

Betty Andrews

Courtney Armstrong and Cheri Armstrong

Yaser Ayyoub and Sanaa Ayyoub

Elizabeth Baker

Eric Bearden and Robyn Bearden

Ramon Becerra and Mary Becerra

Barbara Bell

Brent Billingsly and Meridith Billingsly

James Bowen

Ella Brown

Bobby Burris and Cristi Burris

Jason Busby and Ramonda Busby

Michael M. Cargile

Jamie Causey

Brian Clevenger and Sharon Clevenger

Alex Coonrad and Gretchen Coonrad

Gary Cooper and Lupe Cooper

Sharon Cramer

Rodney Currin

Linda Daugherty

Lance Ferrell and Pam Ferrell

Chuck Flanery and Christy Flanery

George E. Foisset

Jason Forrest and Amanda Forrest

Nicole Gladney

Ramiro Gonzalez

LaDonna Gray

Cory Griffin and Lindsey Griffin

Chris Groff and Allyson Groff

Dennis Gross

Luis Guerra

Anthony Guinn

Melissa Harral

Reginald Hart and Ella Hart

Art Hastings, Jr. and Sara Hastings

Cynthia Hawkins

William Hazelwood and Michelle Hazel-wood

Scott Hoff and Cristie Hoff

Jason Hopkins and Julie Hopkins

Jay Hour and Julie Hour

Harold Hymes, Jr. and Coby Hymes

Barry Ivy and Fonda Ivy

Bobbie Jackson

Ann Johnson

Derrick Johnson and Gloria Johnson

Kevin Johnson and Staci Johnson

Kenny Jones and Wendy Cruz

Bryan LaBounty and Megan LaBounty

Patsy Lambright

Shawn Lee

John Liebreich and Katy Liebreich

Gaylon Maddox

Michael McDaniel and Tina McDaniel

Tracy McDonald

Kelbert McGee

Martin Mendoza and Mona Mendoza

Mike Mendoza and Alicia Mendoza

Michael Miller

Michael Mitchell

Josh Molpus and Meridythe Molpus

Tonja Morgan

Willie Moss and Frances Moss

James Nau and Belda Nau

Fred Norris

Robert Otero and Lana Otero

Shamsi Ottun

Jimmie Paris and Shelly Paris

Lester Patrick

Michael Patton and Lisa Patton

Greg Ray

John Reinboldt and Sherrin Reinboldt

Mark Renfro and Dahila Renfro

Carl Richardson and Karla Richardson

Jan Rinestine and Renda Rinestine

Abraham Rodriquez

Ernest Roe and Jeanna Roe

Darren Runnels and Linda Runnels

Mike Salmon and Linda Salmon

H. Christen Schatz Allums

David Sewell and Stacy Sewell

Hector Silva and Carol Silva

Rodney Simons and Jaime Simons

Earnest Sims

Paul Smith

Chad Southall and Jennifer Southall

Alan Speer and Laura Speer

Angela Spiller

Mike Spurgeon and Cheryl Spurgeon

John Staples and Delesha Staples

Selina Suarez

Randall Thompson and Cheryl Thompson

Christine Tidwell

Susan Tims

Lasunda Truitt

Rebecca Wagner

Sherry Walker and Brian Walker

Susan Walker

Melvin Webb and Tonya Webb

Joe Weissert and Jennie Weissert

Paul Acosta and Kimberly Acosta

Eddie Akins

Denise Allen

Stanley Anderson and Amy Anderson

Daniel Angulano and Christina Angula-no

Donzell L. Ankrum and Tammie Ank-rum

Debbie Archer

Kametra Barbour and Christopher Barbour

Barbara Bell

Phyllis Bench

Gary Bowlby and Aquila Bowlby

Dayton Brightwell and Misty Brightwell

Daryl Brown and Rhonda Brown

Willa Brown

Frank Bueno and Sandra Bueno

Shawn L Bullock and Scott A. Bullock

Jeff Coker and Marci Coker

Bryan Cortez and Christi Cortez

Samuel Curry and Dia Curry

Diane Dickinson and Gary Dickinson

Reginald Dixon and Otilia Dixon

Johnny M. Dockins and Vanessa Doc-kins

Betty Doggett.

Helen DuFrien

Randall Duncan and Patty Duncan

Melvin R. Eades and Charlotte Y. Eades

Donald Earlywine and Julie Earlywine

John D. Edwards and Ella Edwards

Domenic Enriquez and Regenia Enri-quez

James Faulkner and Cynthia Faulkner

Rick Freberia

Herbert Gatlin and Kristina Gatlin

Charry R. Gibson

Jason Gradt and Bonnie Gradt

Gerald Grimes and Joycell Grimes

Jay Tramel

Donald Hamm.

Ryan Harrington

Jason Helmer

Mandie Herrera

Cassandra Jackson

Gilberto Jasso and Maria Jasso.

James Jones and Lisa Jones

John Langford and Tina Langford

Sylvester McKennis and Mattie McKen-nis

Brandon Miller and JoAnn Miller

James Morales and Frankie Morales

Chris P. Morel and Janet Morel

Kenneth Morgan and Deberá E. Morgan

Sharlotte Morrow

Alton Kidd and Barbara Murrell

Edwin Murrell and Christina Murrell

Amanda Ochoa

Cathy J. Parks

Vicky Pearce and Kim Pearce

Jeremy Pope

Christy Caldwell

Roger Reed and Josephine Reed

Nick Reiter and Tammy Reiter

Bobby Richards and Kay Richards

Kimberly Riley

Doretha Rodriguez

Lisa Scarles.

Ronald Session

James Shackelford

Jerry Tadlock and Alysia Tadlock

Mauvelyn Thedford and Adrianna Thed-ford

Randall Thompson and Cheryl Thompson

Ernest Tilley

Jason Turner and Melanie Turner

Renee Updike and Andrew Updike

William Vickers and Lori Vickers

Kelly Walker

Sherry Walker and David Walker

Andrew Walters and Vylinda Walters

Jamie Willetts and Melissa Willetts

Barry Williams and Tamara Williams

Lee Wright and Emily Wright

Catherine Ziegler

M.H. Zitoon

      . The appendix to this opinion lists the appellants individually.

      . Although the Homeowners' petition, originally filed in Kaufman County and consolidated into the District’s declaratory-judgment action in Travis County, alleged several causes of action besides those involving pure questions of law, including fraud and intentional infliction of emotional distress, that cause was severed from the present cause after the Travis County district court granted the District’s summary-judgment motion on the issue of the assessments' validity. Thus, the sole issue on appeal concerns the validity of the assessments, not any of the Homeowners’ factually based claims.

      . The Homeowners assert that only subchap-ter E, and not subchapter F, is incorporated because the title of subchapter E is "Powers and Duties,” while the title of subchapter F is "Assessments.” We disagree. It is the "powers” of a "municipal management district” created under chapter 375 that are incorporated, not the powers of "subchapter E.” Thus, any power relating to a municipal management district appearing anywhere in the chapter could reasonably be incorporated, based solely on the first part of the text of section 383.061, providing that a county development district has the powers of a municipal management district. However, as the text indicates, there are other considerations besides merely the initial text of section 383.061.

      . County development districts "are separate quasi-governmental authorities, which, much like municipal utility or water conservation districts, are created by election, are governed by a board, and have the ability to issue bonds, but with authority to levy sales and use taxes instead of ad valorem taxes." See R. Alan Haywood & David Hartman, Legal Basics for Development Agreements, 32 Tex. Tech L.Rev. 955, 958 n. 23 (2001) (emphasis added).

      . Because we conclude that the assessments were not authorized by the Act as a matter of law, we need not reach the Homeowners’ second and third issues — whether the assess-merits were for an authorized purpose and whether the District complied with mandatory procedures in ordering the levy.

      . The trial court’s order also declared that the lease-purchase agreement and its subsequent amendment, the payments under which were to be made from the assessments, were valid and pursuant to proper statutory authority. The Homeowners have not asserted any issues with respect to this agreement on appeal and have not asked this Court to render summary judgment in their favor.


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    Richard FERRIS, Appellant, v. CITY OF AUSTIN and Board of Adjustment of the City of Austin, Appellees.
    No. 03-03-00263-CV.
    Court of Appeals of Texas, Austin.
    March 25, 2004.

      Anatole R. Barnstone, Terrence L. Ir-ion, Law Office of Anatole Barnstone, Austin, for appellant.
    Nancy K. Matchus, Asst. City Atty., for appellees.
    Before Chief Justice LAW, Justices PATTERSON and DAVID PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

This case deals with the application of municipal land-use regulations and the judicial deference afforded to the decisions made by administrative bodies to vary the terms of those regulations. Appellee, the City of Austin (“City”), in its proprietary capacity as developer of certain property in East Austin, sought relief from its own zoning regulations, those governing the size and shape of lots prior to development, so that it could construct between ten and twenty townhomes on property along East 12th Street and Navasota Street in Austin. At a public hearing, appellant Richard Ferris owner of rental property near the proposed development, testified in opposition to the City’s plan. He argued-that the neighborhood needed commercial not residential services. After the variances were granted by the City’s Board of Adjustment (“Board”), Ferris sought review of the Board’s decision in district court, which affirmed the Board’s decision by summary judgment. We now affirm the district court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 14, 1999, the City of Austin (“City”) approved the Urban Renewal Plan (“URP”). Austin, Tex., Code of Ordinances No. 990114-G (1999). The URP targeted property along East 11th and 12th Streets in Austin for redevelopment and renovation. Id. Specifically, property located at 1101-1111 East 12th Street, and 1190-1196 Navasota Street (hereinafter “the property”) was earmarked for town-home development. Originally, the City planned to build between thirty and thirty-six new townhomes but later reduced that number to between ten and twenty. Austin, Tex., Code of Ordinances No. 010802-89 (2001). The property was zoned for both commercial and residential uses. All development, whether commercial or residential, had to comply with the lot-size restrictions governing commercial development. Austin, Tex., Code of Ordinances No. 980430-0 (1998).

On November 16, 2001, Jerry Freese, on behalf of the City of Austin Neighborhood Housing and Community Development (“NHCD”), asked the Board for an area variance from the zoning requirements governing development of the property. Freese made the following variance requests:

1.A decrease in the minimum lot width under City Code § 25-2-492(D) from 50 feet to 30 feet;
2. A decrease in the minimum lot size under City Code § 25-2-492(D) from 5750 square feet to 2500 square feet;
3. A decrease in the minimum site area for a townhouse development under City Code § 25-2-775(c) from 3600 square feet to 2500 square feet; and
4. A decrease in the minimum side street setback under City Code § 25-2-492(D) from 10 feet to 5 feet.

(collectively, “the area requirements”).

On December 10, 2001, the Board held a public hearing on the City’s requested variances. Freese testified that his office was working at the direction of the Austin City Council pursuant to the URP. The URP mandated the property be developed for townhome use. The townhomes were to be offered for sale to persons with incomes at or below 80% of the median family income (“MFI”). He said they discovered that the lots were too small and irregularly shaped to comply with the minimum lot-size restrictions. In addition, Freese said the property was burdened by topographical restraints, large oak and pecan trees, slopes, and a home designated a historical site, which interfered with the City’s ability to make reasonable use of the property. He said that without the variances the City would not be able to comply with the URP’s goal of building between ten and fifteen townhomes. He testified that, all told, only one of the twelve total lots along 12th Street and Navasota was currently compatible with townhome use.

Testifying in opposition, appellant, the owner of a sixteen-unit apartment house located at 904 and 906 East 12th Street, argued that the City’s plan to construct townhomes on the property would result in a financial loss to the City and the neighborhood. He also said that the neighbors preferred a grocery store or laundry over townhomes.

In reply, Freese pointed out that the City already had plans to turn over other property in the area for commercial development but that, as to this property, commercial use would be incompatible with the URP.

The Board unanimously approved the variances and made the following findings:

1.The Zoning regulations applicable to the property do not allow for a reasonable use because: the llth/12th Street Urban Renewal Plan calls for high density townhouse development with the conditional overlay prohibiting residential driveway access to E. 12th requiring the construction of an alley which reduces available lot depth and size.
2.(a) The hardship for which the variance is requested is unique to the property in that: the Urban Renewal Plan project controls stipulate townhouse development and property must be developed in ac-cordances with U.R.P.
(b) The hardship is not general to the area in which the property is located because this property is located within an U.R.P. area subject to project controls.
3.The variance will not alter the character of the area adjacent to the property, will not impair the use of adjacent conforming property, and will not impair the purpose of the regulations of the zoning district in which the property is located because: project site is vacant and proposed development is supported by Anderson Hill, Cental East Austin Neighborhood Associations, planning team and promotes Smart Growth, S.M.A.R.T. [Safe, Mixed-Income, Accessible, Reasonably Priced, and Transit-Oriented] housing and A.R.A. [Austin Revitalization Authority] goals.

Appellant timely appealed the Board’s decision to grant the variances. In addition to its explicit findings, the Board cited the following reasons for issuing the variances:

1. The URP called for the construction of townhomes.
2. Receipt of federal funds was conditioned on the construction of affordable housing for persons at 80% or below the median family income.
3. In order to place affordable housing in the form of townhomes on each of these lots, variances were needed given the current configuration of the lots and other constraints on the property.
4. Current lot configurations would not meet the City’s lot-size requirements for the construction of townhomes.
5. Because driveway access to East 12th Street was prohibited by City ordinance, an alleyway had to be built behind the townhomes at a cost between $250,000 to $400,000.
6. The construction of an alley would reduce the depth of each lot by 20 feet.
7. To meet the City’s lot-size requirements for townhomes of 3600 square feet, each lot had to measure 44 feet wide (44 feet wide x 84 feet long = 3696 square feet).
8. Lots could not be less than 50 feet wide, however, so a lot-width variance was required.
9. The City’s ability to construct affordable housing was jeopardized by the costs associated with alley construction.
10. Current zoning regulations did not allow for a reasonable use
11. Only one of the twelve lots designated “CS-MU-CO” could support any residential or commercial use.

In response, appellant argued that the applicable zoning regulations would not have prevented the City from putting the property to some reasonable use had the City had more reasonable expectations for the property. Specifically, appellant complained that the City was attempting to over-burden the property, that is, build more townhomes than the property could support. Appellant also argued that the alleged hardship was not unique to the area but driven by financial considerations alone. He argued that the City could not show that absent the variances, the City would be deprived of privileges afforded other similarly situated property owners because no other property owners were similarly situated; that is, no other nearby property was zoned “CS-MU-CO.” On February 6, 2003, the trial court heard arguments in support of the City’s motion for summary judgment, and granted the motion on March 11, 2003.

On appeal from the district court’s ruling, appellant raises four issues. In one issue, appellant challenges the Board’s decision to grant the variances on the grounds that the variance granted the City use of its property not enjoyed by similarly situated property owners. Such a decision, according to appellant, amounted to “rezoning by variance.” Appellant raises three issues dealing with the Board’s hardship finding. According to appellant, the Board abused its discretion in finding hardship because (1) the City cannot ask for relief from a hardship that was self-imposed; (2) a hardship finding cannot be justified solely on financial need; and (3) there was no causal nexus between the hardship claimed and the variance sought since the City would have to resubdivide the property even with the variance.

DISCUSSION

Board Authority

We begin with a review of the Board’s authority. The Board is authorized to make “special exceptions” to the terms of a zoning ordinance “in appropriate cases and subject to appropriate conditions and safeguards” that are “consistent with the general purpose and intent of the ordinance.” Tex. Loc. Gov’t Code Ann. § 211.008(a) (West 1998). It may grant a variance from the terms of a zoning ordinance if (1) the variance is consistent with the public interest and the spirit of the ordinance; (2) special conditions on the property exist, (3) literal enforcement of the ordinance would result in an unnecessary hardship; and (4) the issuance of the variance would result in “substantial justice.” Id. § 211.009(a)(3) (West 1999). The Board is authorized to grant a variance from the terms of a zoning ordinance where “the strict application of [the City’s zoning laws] deprives the property owner of privileges that are enjoyed” by others similarly situated. Austin, Tex., Land Dev.Code § 25-2-473. In granting a variance, the Board must make the following findings of fact: (1) the restrictions in the current zoning ordinance do not allow for “a reasonable use of property;” (2) the hardship necessitating the variance is unique to the property and not generally characteristic of the area; and (3) development under the variance will not impair or alter the use or character of adjacent property or clash with the underlying purposes of the zoning restrictions. Id. § 25-2-474.

Review of board decisions

Any person injured by the Board’s decision may challenge the legality of its decision in a court of record. Tex. Loc. Gov’t Code Ann. § 211.011(a) (West Supp.2004). The court may grant a writ of certiorari directed to the Board. Id. § 211.011(c). The Board must file a verified return concisely stating any pertinent and material facts showing the grounds for its decision. Id. § 211.011(d). The court may take additional evidence if “necessary for the proper disposition of the matter.” Id. § 211.011(e). The party challenging the Board’s decision has the burden of establishing its illegality. Pearce v. City of Round Rock, 78 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). The decision is presumed legal and is reviewed for a clear abuse of discretion. Id. A clear abuse of discretion occurs where the Board has acted without reference to any guiding principles or rules of law. Id. As long as some evidence of substantive and probative character exists to support the Board’s decision, it has not abused its discretion. Southwest Paper Stock, Inc. v. Zoning Bd. of Adjustment, 980 S.W.2d 802, 805-06 (Tex.App.-Fort Worth 1998, no pet.).

Review of the trial court

The City moved for summary judgment. See Tex.R. Civ. Proc. 166a(b), (c). The trial court granted the City’s motion without specifying the grounds. We must affirm if any of the movant’s grounds have merit. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). The City’s motion was based on two grounds: (1) The Board’s decision was supported by evidence of substantive and probative character and (2) the Board’s decision was supported by evidence of the need for affordable housing. We begin by reviewing the Board’s hardship finding.

Hardship

In three issues, appellant challenges the legality of the Board’s finding of hardship. Again, the Board could grant the variance if literal enforcement of applicable zoning laws would result in an unnecessary hardship. See Tex. Loc. Gov’t Code Ann. § 211.009(a)(3); Austin, Tex., Land Dev. Code § 25-2-473. Appellant’s first two hardship issues question the sufficiency of the evidence before the Board. Appellant claims that it was an abuse of discretion for the Board to grant the variances because the evidence showed that the hardship suffered by the City was self-imposed and that the hardship was financial in nature. Appellant’s last hardship issue challenges the need for the variances altogether.

Self-imposed hardship

First, according to appellant, the City’s hardship was self-imposed. Appellant contends that the City’s goal of building between ten and twenty townhomes was unreasonable given the size and shape of the lots. According to appellant, the property was compatible with some residential development — -just not to the degree or at the density the City intended. By burdening the property with more townhomes than it could support, the City was imposing the hardship on itself. In response, the City denies attempting to over-burden the property and adds that without the variances it could make no use of the property, commercial or residential, because the lots did not meet the area requirements for commercial development.

Whether a hardship exists is a question of fact to be determined by the Board. Freeman v. Board of Adjustment, 230 S.W.2d 387, 388 (Tex.Civ.App.-San Antonio 1950, no writ). On appeal, the issue is not whether there was hardship, but whether the trial court, after examining all the evidence, could conclude as a matter of law that the Board had evidence of a substantive and probative nature before it upon which it could conclude that a literal enforcement would result in an unnecessary and unique hardship. Currey v. Kimple, 577 S.W.2d 508, 513 (Tex.Civ.App.-Texarkana 1978, writ ref d n.r.e.). Where, owing to no fault of the owner, the lots are configured in such a way as to make them incompatible with zoning laws and the strict application of those zoning laws would deny the property owner reasonable use of the property, the Board has the authority to grant a variance from the zoning restrictions. Id. Such is the case here. There is no evidence that the City was the original developer of the property or that it was responsible for subdividing the lots into their present non-conforming shapes. In the absence of evidence the substandard lot configuration was the product of deliberate conduct of the City, the City’s hardship was not self-imposed. We overrule appellant’s first hardship issue.

Financial hardship

Appellant’s second issue deals with the financial reasons the City cited in support of the requested variances. Appellant believes that the Board’s decision to grant the City’s variances rested solely on the economic considerations cited by the City. According to appellants, the City sought the variances it did — a twenty foot-reduction in the lot width requirement, a 3250 square-feet reduction in the lot-size requirement, a 1100 square-feet reduction in the site-size requirement, and five foot-reduction in the side-street setback requirement — so that it could make maximum use of the property at minimal cost. At one point in the hearing, the Board asked Freese why the City had proposed the number of townhomes it had. He responded:

Why so many? Site development costs are the same for the city as they are for a private developer, even though we’re the city and we’re using federal money, we still have to be guardians of that federal money and use it to the best of our ability.
The site development costs are going to be the same whether we put 5 houses up there or 10. Now, if you don’t give us the variances, we will build 5 units instead of 10 but they are going to be far less affordable, that’s going to push the affordability rather than maybe getting somebody at 60% MFI, it could be the cost would go up and we’ll only be able to get people at 80% MFI. I can’t give you those numbers until we know of your decision and the engineers go back and design and we design the houses. But, that’s the issue, we’re gonna have to build the alley regardless, the engineers are estimating the alleys going to be between $250,000 and $400,000. That cost is gonna be there whether we build 5 houses or 10 or 15. That’s why we’re trying to build as many in there as possible to make it as cost effective as possible.

A similar “economies-of-scale” argument was rejected in Board of Adjustment of City of San Antonio v. Willie, 511 S.W.2d 591, 594 (Tex.Civ.App.-San Antonio 1974, writ ref d n.r.e.). In that case, the property owner sought a variance from an ordinance limiting the height of buildings. Id. at 592. The board of adjustment granted the variance without making a specific finding of hardship. Id. at 593. Instead, it had based its decision solely on the testimony of the property owner’s engineer who said that the multistoried structure was the “highest and best use of this very valuable commercial property in that by going up you spread the costs of the land.” Id. at 594. The board’s decision was reversed in the absence of noneconomic evidence supporting the board’s hardship finding. Id.; see also Bat’tles v. Board of Adjustment & Appeals, 711 S.W.2d 297, 300 (Tex.App.-Dallas 1986, no writ) (reversing decision to grant variance to developer where only showed that hardship suffered by applicant was economic).

Appellant cites the correct rule governing a finding of hardship. He states, “In order to justify a variance, a hardship must not be self-imposed, nor financial only, and must relate to the very property for which variance is sought, i.e. a condition unique, oppressive, and not common to other property.” See Town of S. Padre Island v. Cantu, 52 S.W.3d 287, 290 (Tex.App.-Corpus Christi 2001, no pet.); Moody v. City of Univ. Park, 278 S.W.2d 912, 920 (Tex.Civ.App.-Dallas 1955, writ ref'd n.r.e.). This is the rule as we understand it. But turning to the record before the trial court, we find that the Board’s decision was supported by noneco-nomic evidence. The evidence showed that the property along East 12th Street and Navasota consisted of 12 irregularly sized lots. The lots were subdivided into irregular shapes before the City zoned the property and created the various minimum lot-size requirements. The lots on Navasota were less than 50 feet wide and 5,750 square feet in size and could not support commercial or residential use. Of the nine lots on 12th Street, only two were large enough to accommodate any commercial or residential use — the lots at 1105 and 1111 East 12th Street. The latter was the address of the Connelly-Yearwood home, which was scheduled for renovation. The City’s plan to carve out the Connelly-Yearwood home from the remainder of the lot and put the remainder to residential use was stymied by a large tree present on the lot. Other lots were burdened by topographical restraints making residential use impracticable. We find this evidence sufficient to support the Board’s decision and overrule appellant’s second issue.

No nexus between the variance sought and hardship claimed

Appellant raises a third hardship issue; namely, the Board’s decision to grant the variances was illegal because the City had not demonstrated a nexus between the hardship claimed and the variances sought. In short, appellant claims the remedy available to the City was to resubdivide the property and not to vary its boundaries. Appellant alleged that “even with the variances, the City will have to resubdivide as two of the presently configured lots would not meet the reduced thirty-foot lot width requirement, nor the uniform thirty foot lot widths provided in the City’s own plans.” Appellant also contends that there was some intermediate lot configuration available to the City that would allow for an alternative residential use — one available without the need to vary the boundaries of the property as extensively as the City proposed. Appellant argued that the City cannot justify' such an “extreme departure” from the zoning laws that govern the property’s development. He suggests a use, SF-4, that would be less of a departure from present zoning restrictions and would allow for reasonable use. The City contends that the issue was not whether the City had an alternative residential option but whether the City could make any use of the property absent the variances.

We find nothing illegal about the Board’s decision to grant the City the variances under the grounds proposed by appellant. We agree with the City that the only issue before the Board was the propriety of the City’s requested variances. The Board’s decision was proper because there was evidence that a strict application of the terms of the commercial and residential zoning ordinance would deprive the City of the reasonable use of the property. Evidence as to alternative uses available to the City once the variances were granted did not bear on whether the City could make any use of the property absent the variances. For example, appellant says the City should have asked to construct single-family residences on the property instead of townhomes because that choice would require less of a departure from the lot-size restrictions. The Texarkana Court of Appeals in Currey rejected that very argument. 577 S.W.2d at 513. Once the variance is granted, the property owner is free to put the property to any conforming use. Id.

Evidence of some other permitted use would have been relevant if the record showed that the property, as configured, could have supported some commercial or residential use. Since all development on this property was governed by area regulations for property zoned “Commercial Services” and the record shows that the lots, save one, did not meet those regulations, the Board’s decision was reasonable. A finding of hardship must be based on a finding that the property, as situated, would not support some conforming use. See Bat’tles, 711 S.W.2d at 300; Currey, 577 S.W.2d at 513; Board of Adjustment v. Stovall, 218 S.W.2d 286, 288 (Tex.Civ.App.-Fort Worth 1949, no writ). The record shows that the City could not put the property to reasonable use under the applicable zoning regulations. Once the Board determined that a strict application of the area restrictions would deprive the City of reasonable use of the property, commercial or residential, then the City was free to make whatever residential use of the property it saw fit.

Last, we find that appellant has not supported his assertion with any legal authority that resubdivision was the only relief available to the City. Evidence as to other relief available to the City did not bear on the propriety of the City’s requested variance.

Having found that the Board’s decision to grant the variances was supported by the evidence of substantive and probative character, we overrule appellant’s third hardship issue.

Rezoning by variance

In his last issue, appellant contends that in granting the City’s variances, the Board rezoned the property, a legislative power vested only in the Austin City Council. Appellant argues that the Board does not have the authority to vary the terms of the zoning ordinance. As indicated above, the Board is specifically authorized to vary the terms of the zoning ordinance. Tex. Loc. Gov’t Code Ann. § 211.009(a)(3).

Appellant also argues that the City failed to establish that “because of special circumstances of a property, the strict application of this chapter deprives the property owner of privileges that are enjoyed by another person who owns property in the area that has the same zoning designation as the property for which the variance is requested.” Austin, Tex., Land Dev.Code § 25-2-473. Appellant argues that because there is no other property in the area with the same “CS-MU-CO” designation, the request for a variance should have been denied. The City counters that the only findings the Board was required to make before granting a variance were those found in section 25-2-474 of the City of Austin’s Land Development Code. Consequently, the failure to show that the City was denied a privilege afforded similarly situated property owners does not render the Board’s decision illegal.

We disagree with the City’s argument that the sole criteria for granting a variance is found in section 25-2-474. While the Board is not required to make an explicit finding that the property owner has been denied a privilege afforded similarly situated property owners, there must be evidence in the record that the City was denied a privilege afforded to other similarly situated property owners within the area. But we find that there was. While there was no property in the area zoned “CS-MU-CO,” there was other residential property. Neither appellee nor appellant cite us to any Texas case law interpreting a similar criteria for granting a variance but it is rather clear that the City was denied a privilege afforded other residential property owners — the right to construct some residential housing. As we have indicated above, given the current configuration of the lots, only one of the 12 lots designated “CS-MU-CO” could sustain any development, commercial or residential; consequently, we overrule appellant’s fourth issue.

CONCLUSION

We find the record before the trial court contained evidence of substantive and probative character in support of the Board’s decision to grant the variances. We affirm the trial court’s judgment granting the City’s motion for summary judgment.

      . The property consisted of 12 lots zoned "CS-MU-CO.” "CS” is the designation for a "Commercial Services District,” a district allowing "commercial or industrial use of a service nature that has operating characteristics or traffic service requirements that are incompatible with residential environments.” Austin, Tex., Land Dev.Code § 25-2-103 (2003). "MU” is the designation for "Mixed Use.” Id. § 25-2-172 (2003). Townhomes are a permitted use in a Mixed Use District. Id. § 25-2-646(3) (2003). "CO” is the designation for a "Conditional Overlay,” which is some modification of the land use regulations so that two competing uses, in this case commercial and residential, could co-exist. Id. § 25-2-164 (2003).

      .A "variance” allows a property owner to use land in a manner forbidden by the zoning ordinance. West Tex. Water Refiners v. S & B Beverage Co., 915 S.W.2d 623, 627 (Tex.App.-El Paso 1996, no writ). An "area variance” allows the property owner to deviate from the strict application of the terms of the zoning ordinance involving "setback lines, frontage requirements, height limitations, lot-size restrictions, density regulations, offstreet parking and yard requirements.” Robert M. Anderson, American Law of Zoning 3d § 20.07 (1986). Area restrictions govern size not use. See id. A "use variance,” on the other hand, allows a property owner to seek total relief from the zoning ordinance itself, that is, the uses permitted under the ordinance and not just their terms, for example, to construct a filling station, beauty store, drive-in theater, or parking lot in an area designated for residential use only. See id. § 20.06; Swain v. Board of Adjustment of City of Univ. Park, 433 S.W.2d 727, 732 (Tex.Civ.App.-Dallas 1968, writ ref'd n.r.e.) (denying variance where property owner sought to construct a filling station in an area zoned for residential use); Board of Adjustment v. Levinson, 244 S.W.2d 281, 282 (Tex.Civ.App.-San Antonio 1951, no writ) (denying variance where property owner sought to construct beauty store in area zoned for residential use); Board of Adjustment v. Stovall, 218 S.W.2d 286, 289 (Tex.Civ.App.-Fort Worth 1949, no writ) (denying variance where property owner sought to construct drive-in theater in area zoned for residential uses); Texas Consol. Theatres, Inc. v. Pittillo, 204 S.W.2d 396, 399 (Tex.Civ.App.-Waco 1947, no writ) (denying variance where property owner sought to construct parking lot in area zoned for residential uses); Harrington v. Board of Adjustment, 124 S.W.2d 401, 408 (Tex.Civ.App.-Amarillo 1939, writ ref'd) (denying variance where property owner sought to construct filling station in area zoned for residential uses). As we discuss below, a board of adjustment may grant a property owner relief from the terms of a zoning ordinance but not from the uses permitted by the ordinance. See Tex. Loc. Gov’t Code Ann. § 211.009 (West 1999).

      . The minimum lot width requirement for a Commercial Services District is 50 feet. Austin, Tex., Land Dev.Code § 25-2-492D (2003).

      . The minimum lot size for a CS zoning district is 5750 square feet. Id.

      . The minimum site area for a townhouse is 3600 square feet. Id. § 25-2-775.

      . The minimum side street setback for a CS zoning district is 10 feet. Id. § 25-2-492D.

      . At common law, a review by certiorari was limited to determining whether the inferior body had acted within its proper jurisdiction. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 70 (1945). The only remedy for a jurisdictional error was to quash the record. Id. at 70. A review by certiorari of a decision of a board of adjustment is broader than at common law in that in passing on the legality of the order of the board, the trial court will consider not only the original filings before the board but additional evidence introduced before the trial court as well. Id.

      . Single-family residence small lot (SF-4A) district is the designation for a moderate density single-family residential use on a lot that is a minimum of 3,600 square feet. Austin, Tex., Land Dev.Code § 25-1-58 (2003).

      . By confusing the type of relief requested by the City, appellant misunderstands the difference between a "use variance” and an "area variance.” The City was not attempting to put the property to any prohibited use. Townhomes are a permitted use in a "Mixed Use District.” Austin, Tex., Land Dev.Code §§ 25-2-172, 25-2-646(3). Appellant says that the City could have constructed single-family residences on the property. That is true but the City chose to construct town-homes on the property. It had every right to do so.

      . While the Board’s findings of fact specifically cite compliance with the URP as its justification for finding hardship, the record indicates that there was other evidence supporting the Board's decision such as the physical characteristics of the property and the irregularly sized lots. Evidence that the design for the property would have some ancillary public benefit strengthens the equitable considerations before the Board, Tex. Loc. Gov’t Code Ann. § 211.009(a)(3) (requiring the Board to do “substantial justice.”), but cannot form the sole basis for finding a hardship, Anderson, supra § 20.41.

      . The board of adjustment must make the following required findings: (1) the restrictions in the current zoning ordinance do not allow for “a reasonable use of property;” (2) the hardship necessitating the variance is "unique to the property and is not generally characteristic of the area in which the property is located;” and (3) development under the variance will not impair or alter the use or character of adjacent property or clash with the underlying purposes of the zoning restrictions. Austin, Tex., Land Dev. § 25-2-474 (2003).