Homeowners file lawsuit against approval of Fairview Temple construction

FAIRVIEW, Texas (ABC4) — Homeowners in the town of Fairview filed a lawsuit against Fairview Town Council after the council provided permits to the Church of Jesus Christ of Latter-day Saints to build a temple in the town.

The construction of the Fairview temple has been a hot

topic of debate in the town for the past year. After concessions were made and a new design for the temple was proposed, the town council approved the temple for construction on April 30 this year with a 5-2 vote.

However, this lawsuit is alleging that due to Texas law, the council did not have enough votes to approve the permits. Because residents voiced their protests against the construction, the council needed to have a supermajority (75%) of votes to approve the variance, the lawsuit said.

From the lawsuit filing

According to the lawsuit filing obtained by ABC4.com, three homeowners are named in the suit against the town. They allege that “out of an abundance of caution,” they appealed the council’s decision with Fairview’s Zoning Board of Adjustments.

Though the Zoning Board has not ruled on their appeal, the lawsuit alleges that in a recent town council meeting, representatives for the town questioned whether the Zoning Board had the authority to overturn the town council’s decisions.

The lawsuit states that the homeowners believe that the Zoning Board does have the authority, but they have filed the suit in the case that the Zoning Board is found not to have the authority, or if the Zoning board agrees with the council.

According to the suit, when a certain number of property owners who will be affected by the permit file a written protest, the permit can only be approved by a supermajority of the governing body, in this case, the Fairview Town Council.

Per Texas Local Government Code § 211.006(d), the protest must be signed by 20% of the owners of the “immediately adjoining the area covered by the proposed change and extending 200 feet from that area.”

The lawsuit is alleging that the people who signed the protest against the temple construction permits own 20% of the land extending 200 feet from the area where the temple will be built, or the “protest zone.”

However, the issue is that the land the temple is set to be built on adjoins the neighboring city of Allen, Texas, and part of the protest zone could include land in Allen.

The lawsuit is arguing that any land in Allen should not be included in the protest zone, because people who own property outside of Fairview cannot file protests with the Town of Fairview, because they are not included on Fairview’s tax rolls.

If you exclude any land outside of Fairview, then the protest was signed by 20% of the property owners within the protest zone, according to the homeowners, and then the town council’s approval would not be valid because they did not have a supermajority.

The Mayor of Fairview Responds

Fairview Mayor Dr. John Hubbard issued a statement in response to the lawsuit filed against the town council.

“The Town of Fairview maintains that the area of the ‘protest zone’ was calculated correctly,” he said. “The Town Council acted based on the information available at the time and in what was believed to be in the best interest of Fairview. Every resident has the right to pursue any legal remedy if they believe the Council did not follow proper procedures in approving the Conditional Use Permit (CUP).”

He also stated that the issue is not opposing the construction of the temple. The issue, he said, “has always been about the size of the building and the height of the steeple.”

“While the LDS Church has graciously reduced the steeple height to 120 feet, many residents believe that a structure of that scale is incompatible with a district zoned for a 35-foot height limit,” he continued,

He concluded by sharing that he believes a path to compromise is possible without getting the courts involved.

“I believe litigation could be avoided if both the LDS Church and the appellants are willing to compromise further on the height,” he said. “A lower steeple would allow the town to avoid costly legal proceedings, the church to build the temple it needs, and the community to preserve the small-town character that makes Fairview unique. This is a path where everyone can win.”

If the court rules in favor of the homeowners, the Fairview Town Council will have to vote on the temple’s construction permit again, and a supermajority of council members must vote in favor in order to approve the permit.

The homeowners requested that the court wait to hear their case until the Zoning Board has ruled on their appeal. They are also requesting that the court pay their attorneys’ fees.

What did the town council initially approve?

In April, the council voted 5-2 to approve the construction of a temple for the Church of Jesus Christ of Latter-day Saints.

“This has been an extraordinarily difficult decision, how to deal with this… None of us are pleased with this, but it is what we think we need to do,” a councilmember said. Other council members also voiced their displeasure with the decision, but they still voted to approve the construction of the temple — with provisions.

The Fairview Texas Temple is not allowed to exceed a height of 44 feet and 7 inches from the ground up to the roof, and the spire will not be allowed to exceed 120 feet from the ground. The building itself will be limited to roughly 30,700 square feet, and the town council also placed restrictions on the exterior lighting of the building.

The original plan for the temple was for a 44,000-square-foot building with a reported 174-foot spire. Current plans are for a 30,000-square-foot building with a 120-foot-tall spire on 8.61 acres in Fairview.