COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-08-294-CV

ABDER EL HAMAD	APPELLANT

	V.

COMMERCIAL BOARD OF 							  APPELLEE

ADJUSTMENT, A DIVISION OF 

THE ZONING BOARD OF 

ADJUSTMENT OF THE 

CITY OF FORT WORTH	

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	FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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	MEMORANDUM OPINION1

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I.  Introduction

	In four issues, Appellant Abder El Hamad appeals the summary judgment granted in favor of Appellee Commercial Board of Adjustment, a Division of the Zoning Board of Adjustment of the City of Fort Worth (the “Board”).  We affirm.

II.  Factual and Procedural History

	El Hamad owns three adjacent pieces of real property (the “Property”) in the City of Fort Worth (the “City”).  The Property is zoned “I” (Light Industrial). On this Property, he operates what he refers to as “an automotive recycling facility” and what the Board refers to as a “motor vehicle junkyard” (hereinafter “the Business”).  The parties do not dispute that, for the Business to operate on the Property, El Hamad must secure a special exception.2	

	In January 2006, the Board granted a one-year extension of the special exception instead of the two-year extension El Hamad had applied for, with a stipulation that cars could not be stacked above the height of the fence.3  One of the board members moved to approve the request for two years to give El Hamad time to move out of the neighborhood, but that motion failed to carry. 

	In January 2007, the Board granted a six-month extension of the special exception—to close the Business—and again required that no vehicles be stacked above the fence or be located outside of the fence.  El Hamad had first sought an additional two-year extension of the special exception and then reduced his request to a one-year extension, stating that he had talked with the people that lived in the area and that they were willing “to say they will compromise for one more year with [him].”4  He informed the Board that it would take him that long to close up the Business, but when asked by a board member how long it would take to shut down his operation if he did not get the extension, he also stated, “I don’t know.  Maybe a couple of months.”

	In September 2007, the Board denied El Hamad’s request for a two-year extension of the special exception.5  El Hamad filed an original petition and writ of certiorari in the trial court, protesting this denial, attributing it to the “substantial neighborhood  opposition” of people seeking to make the area more residential, alleging that the Board had exceeded its authority by improperly attempting to rezone the area on the basis of political pressure, and asserting that he was unfairly treated because “the Board has recently granted extensions of ten (10) years to similar activities in the surrounding area.”  See Tex. Loc. Gov’t Code Ann. § 211.011 (Vernon 2008); see also Sw. Paper Stock, Inc. v. Zoning Bd. of Adjustment of City of Fort Worth, 980 S.W.2d 802, 805 (Tex. App.—Fort Worth 1998, pet. denied) (explaining procedure under section 211.011 for challenging action by board of adjustment).

	The Board filed a verified return with its motion for summary judgment, including the transcripts of the Board’s hearings on all three of El Hamad’s applications, and it filed objections to the affidavit El Hamad relied upon in his response to the Board’s motion for summary judgment.  The Board also included with its objections an affidavit by Dana Burghdoff, the Board’s executive secretary and a deputy director in the City’s planning and development department, which El Hamad did not object to.  Burghdoff stated (with attached supporting documents) that the two businesses in the area that received ten-year extensions had different zoning (K-zoning) than El Hamad’s Property, that property zoned “K” allows for ten-year extensions, and that property zoned “I” does not.6  The trial court sustained the Board’s objections to El Hamad’s affidavit, and it granted the Board’s motion for summary judgment.  This appeal followed.

III.  El Hamad’s Issues

	El Hamad argues that the Board’s summary judgment had no legitimate support on either the facts or the law and that the denial of his requested special exception was an improper action that arbitrarily reversed the Board’s prior decisions and created “a new policy/legislation with regards to the proper zoning in this area, far beyond its grant of authority under State law.”  In his first three issues, he specifically complains that he should not have been denied a special exception because:  (1) the trial court applied the incorrect standard of review to his writ of certiorari appealing the denial of his special exception; (2) the Board’s actions were improper because they were essentially legislative in nature, thereby breaching the statutory framework limiting the methods by which zoning may be changed; and (3) the Board’s actions were arbitrary and capricious because the use in question had not changed, it was a conforming use, the Board had granted numerous extensions for the use and similar activities, and the denial was triggered by political protests.7  In his fourth issue, he complains that the trial court erred by excluding “various items” in his affidavit.

IV.  Discussion

A.  Standard of Review

	The appropriate standard of review with regard to a board of adjustment’s order is “whether the board of adjustment has abused its discretion, i.e., whether it has acted without reference to guiding rules and principles or whether it has acted arbitrarily and unreasonably.”  W. Tex. Water Refiners v. S & B Beverage Co., 915 S.W.2d 623, 626 (Tex. App.—El Paso 1996, no writ).

A board’s order carries the presumption of legality, and the party attacking it bears the burden of establishing its illegality.  Id.; see also Pick-N-Pull Auto Dismantlers v. Zoning Bd. of Adjustment of City of Fort Worth, 45 S.W.3d 337, 339–40 (Tex. App.—Fort Worth 2001, pet. denied).  

	The issue of whether a board abused its discretion is a question of law appropriately determined by summary judgment.  Pick-N-Pull Auto, 45 S.W.3d at 340.   In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).  The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant.  Sw. Elec. Power Co., 73 S.W.3d at 215.  Here, we must determine whether the Board proved as a matter of law that it did not abuse its discretion—that is, if there is some evidence of substantive and probative character supporting the Board’s decision, the trial court did not abuse its discretion by granting the Board’s motion for summary judgment.  See Pick-N- Pull Auto, 45 S.W.3d at 340.

B.  Analysis

	In Pick-N-Pull, this court concluded that the board, as factfinder, did not abuse its discretion by denying a special exception sought by an automobile dismantling business in light of conflicting evidence presented by the business (that it would be a good neighbor) and by its neighbors (letters expressing compatibility concerns).  Id. at 340–41.

	Having reviewed the entire record, we conclude, as we did in Pick-N-Pull, that as a matter of law the Board, as factfinder, did not abuse its discretion by denying El Hamad’s special exception when it denied an extension of the special exception after considering both El Hamad’s testimony (that the Business was a good neighbor) and that of his neighbors (that the Business was no longer compatible with the surrounding area).8  See id.; see also Sw. Paper Stock, 980 S.W.2d at 808 (“[T]he Board may not grant a special exception unless it determines that the proposed use is compatible with the use of the neighboring property.”).

	Furthermore, we cannot say that the trial court abused its discretion by sustaining the Board’s objections to El Hamad’s affidavit.  See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (“We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.”).  Given that the summary judgment issue before the trial court was whether the Board abused its discretion by denying El Hamad’s special exception application based on compatibility, we cannot say that the trial court abused its discretion by sustaining the Board’s relevance objections to El Hamad’s statements about compliance, to his allegations about the two similar nearby businesses (the two K-zoned businesses) receiving ten-year extensions on their special exceptions,  		or to his other statements that essentially duplicated the hearing testimony.9

	Finally, to the extent that we have not addressed all of El Hamad’s arguments, we overrule them as inadequately briefed.10  See Tex. R. App. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (discussing “long-standing rule” that point may be waived due to inadequate briefing). 

	For the foregoing reasons, we overrule El Hamad’s four issues. 

V.  Conclusion

	Having overruled El Hamad’s four issues, we affirm the trial court’s judgment.	

								BOB MCCOY

								JUSTICE

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

DELIVERED: May 14, 2009