In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00266-CV
CITY OF GLEN ROSE, TEXAS AND THE ZONING BOARD OF ADJUSTMENTS OF
THE CITY OF GLEN ROSE, TEXAS, APPELLANTS
V.
ERNEST AND SHIRLEY REINKE, APPELLEES
On Appeal from the 249th District Court
Somervell County, Texas
Trial Court No. C10381, Honorable William C. Bosworth, Jr., Presiding
February 8, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
The City of Glen Rose (City) and the Zoning Board of Adjustments of the City of
Glen Rose, Texas (ZBA) appeal from a summary judgment granted in favor of Ernest
and Shirley Reinke (the Reinkes). The dispute arose when the Reinkes sought but
were denied a certificate of occupancy to operate a drug and alcohol rehabilitation
center as either a “hospital” or “convalescent center” under a City zoning ordinance.
The certificate was denied them by the Glen Rose City Administrator, whose decision
was affirmed by the ZBA. The Reinkes appealed by filing in the local district court a
petition for a writ of certiorari. Upon entertaining and granting the Reinkes' motion for
summary judgment, the trial court ordered the cause “remanded back to the . . . [ZBA]
for issuance of a Certificate of Occupancy in conformity herewith.” The City appealed,
contending that the trial court 1) lacked jurisdiction over the matter since the Reinkes
allegedly failed to exhaust an administrative remedy and 2) abused its discretion. We
affirm.1
Jurisdiction / Administrative Remedies
The argument regarding the purported failure to exhaust administrative remedies
concerns the denial of an application for a “special use permit.” Because the Reinkes
failed to appeal that action through administrative channels, they did not satisfy their
obligation to exhaust all administrative remedies, according to the City and the ZBA.
We overrule the argument for one simple reason.
The decision forming the basis of the Reinke petition for writ of certiorari did not
involve the denial of a special use permit but rather the certificate of occupancy. No
one suggests and the record does not reflect that they failed to exhaust any
administrative remedy pertaining to the ZBA’s refusal to overrule the City
Administrator’s decision to withhold the certificate of occupancy. Nor does either the
City or the ZBA argue that the special use permit and certificate of occupancy are one
and the same or that the failure to secure the former bars issuance of the latter.
Abuse of Discretion
Next, the City and the ZBA contend that the trial court abused its discretion in
granting the writ and ordering that they issue a certificate of occupancy because the
1
Because the appeal was transferred to this court from the Waco Court of Appeals, we apply the
latter’s precedent where available. See TEX. R. APP. P. 41.3.
2
proposed use likened to a “sanitarium,” as opposed to a “hospital” or “convalescent
center.” This distinction allegedly is of import since a sanitarium cannot be operated at
the locale in question but only in an industrial area. We overrule the issue.
Our review of the dispute is controlled by § 211.011 of the Texas Local
Government Code. Pearce v. City of Round Rock, 78 S.W.3d 642, 646 (Tex. App.—
Austin 2002, pet. denied). It provides that “a person aggrieved by a decision” of the
zoning board of adjustment, “a taxpayer,” or “an officer, department, board, or bureau of
the municipality” may present to a district court “a verified petition stating that the
decision of the board . . . is illegal in whole or in part and specifying the grounds of the
illegality.” TEX. LOCAL GOV. CODE ANN. § 211.011(a)(1)-(3) (West 2008). The only
question the trial court has in such a proceeding is deciding “the legality of the zoning
board’s order.”
City of Dallas v. Vanesko, 189 S.W.3d 769, 771 (Tex. 2006).
Furthermore, an order is illegal when the party attacking it “. . . present[s] a ‘very clear
showing of abuse of discretion.’” Id., quoting, City of San Angelo v. Boehme Bakery,
144 Tex. 281, 190 S.W.2d 67, 71 (Tex. 1945).
And, discretion is abused when the
board acted “. . . without reference to any guiding rules and principles or clearly fails to
analyze or apply the law correctly.” Id. In making the requisite determination, the
reviewing court cannot substitute its own judgment for that of the board with respect to
the board’s factual findings. Id. However, legal conclusions made by the zoning board
are not entitled to similar deference since they undergo de novo review. Id.
The decision to deny the applications was based upon the City Administrator’s
conclusion that the use to which the property would be put was more akin to a
“Sanitarium.” That is, he recognized that the property was located in a B-2 zoning
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district and that within a B-2 zoning district, one may operate both a convalescent center
and hospital. Further acknowledged was that the local zoning ordinance defined a
“Convalescent Center” as “[a]ny building or structure used for or customarily occupied
by persons recovering from illness or suffering from infirmities of age” and a “Hospital”
as “[a]n institution or place where sick or injured patients are kept overnight and given
medical or surgical care.” If the “new business” fell within either category, then the
happenstance “would make [the B-2 designation] eligible for your property,” he
continued. Having so represented, he then conceded that 1) “[a]n institution or place
where sick or injured patients are kept overnight and given medical care does seem to
apply to this case” and 2) “[w]here the recovering from illness may apply the suffering
from infirmities of age does not clearly apply to your proposed business.”2 (Emphasis
added).
In other words, the proposed business had the characteristics of both a
“Convalescent Center” and “Hospital” as expressly defined by the City. Given that, the
Reinkes property was eligible for a B-2 zoning designation and the desired certificate of
occupancy should have been issued.
We are reminded of that old idiom that if it looks like a duck, swims like a duck
and quacks like a duck, then it is a duck. The proposed use of the property in question
looked, swam, and quacked like a “Hospital” and “Convalescent Center,” as the City
2
We note that the written definition of a “convalescent center” appearing in the zoning ordinance
described characteristics in the disjunctive. The building or structure had to be “used for or customarily
occupied by persons recovering from illness or suffering from infirmities of age.” (Emphasis added).
Being in the disjunctive, either indicia need only have been satisfied for the property to qualify as such a
center. The City Administrator apparently attempted to alter the plain wording of the ordinance to require
that both indicia had to be met. That he could not lawfully do. While the City Administrator or Board of
Adjustment may have the authority to determine particular cases, neither has the authority to “promulgate
new and ex post facto legislation” or to “write words into or out of and to change the zoning ordinance. . .
after a dispute arises. . . .” Board of Adjustment v. Underwood, 332 S.W.2d 583, 586 (Tex. Civ. App.—
San Antonio 1960, writ ref’d n.r.e.). In suggesting that a “Convalescent Center” must be a building or
structure used by persons “recovering from illness” and “suffering from infirmities of age” the City
Administrator effectively tried to rewrite the ordinance after the dispute arose and, thereby, exceed his
authority.
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itself defined those words. Its administrator (who was initially charged with addressing
the application) acknowledged as much.
So, it can be said that the trial court did that
which the City Administrator and the ZBA should have done, that is, it ordered the
issuance of the certificate of occupancy under the B-2 designation.
As previously indicated, though, the City and the ZBA would have us defer to its
determination that while the business use fell into the categories of “Hospital” and
“Convalescent Center,” it really was a “Sanitarium” under the zoning ordinance and
unentitled to a B-2 designation. Unlike the terms “Hospital” and “Convalescent Center,”
though, the City had not defined the word “Sanitarium.” Due to this circumstance, the
City Administrator turned to the internet to garner a definition of the word. Upon doing
so, he then informed the Reinkes, when denying their application, that: “The online
research of the definition of Sanitarium says: 1. An institution for the treatment of
chronic diseases or for medically supervised recuperation [and] 2. A resort for
improvement or maintenance of health, especially for convalescents.” (Emphasis
in original). In comparing his internet definitions of “Sanitarium” to the definitions of
“Hospital” and “Convalescent Center” expressed in the ordinance, one immediately
sees a remarkable identity between them. All three encompass the treatment of and
recovery from illness and the provision of medical care. Indeed, this similarity led the
City and the ZBA to concede in the appellant's brief that “Sanitarium” comes within the
penumbra of “Hospital” and “Convalescent Center.”
3
So, despite satisfying the
elements contained in the zoning ordinance's definition of “Hospital” and “Convalescent
3
It stated: “While a ‘sanitarium’ would also fall under the broad definitions of a ‘hospital’ and
‘convalescent center,’ as places where persons are treated for illnesses of some type, it is clear from its
common, ordinary meaning that a sanitarium has additional characteristics and thus the term is more
specific.”
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Center,” a business that can be also placed within the undefined label of “sanitarium”
can be denied a B-2 zoning designation, according to the City and its Administrator. We
disagree.
Ordinances are construed under the same rules of construction applicable to
interpreting statutes. Board of Adjustment of San Antonio v. Wende, 92 S.W.3d 424,
430 (Tex. 2002); Town of Annetta South v. Seadrift Dev., L.P., 446 S.W.3d 823, 825
(Tex. App.—Fort Worth 2014, pet. denied). What they mean is a question of law.
McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); West Tex. Water Refiners v. S
& B Beverage Co., 915 S.W.2d 623, 628 (Tex. App.—El Paso 1996, no pet.). Thus, we
may construe ordinances de novo; that is, we are not bound by the interpretation given
it by the city officials. McIntyre v. Ramirez, 109 S.W.3d at 745.
Next, one rule of statutory construction tells us that we should not assign a
meaning to a statutory provision that is inconsistent with other provisions. Board of
Adjustment of San Antonio v. Wende, 92 S.W.3d at 430-31.
Another tells us that
undefined terms are typically given their ordinary or plain meaning. Greater Houston
Partnership v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015). Yet, we must not accord an
“‘undefined term a meaning that is out of harmony or inconsistent with other terms in the
statute.’” Id., quoting, State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex.
2013). Nor may the plain meaning be assigned if it would lead to an absurd result. City
of Houston v. Bates, 406 S.W.3d 539, 544 (Tex. 2013). Finally, ordinances regulating
land use are ordinances in derogation of rights afforded landowners under the common
law, and, as such, they are strictly construed against the municipality and in favor of the
landowner. Town of Annetta South v. Seadrift Dev. L.P., 446 S.W.3d at 825-26; City of
6
Grand Prairie v. Finch, 294 S.W.2d 851, 854 (Tex. Civ. App.—Dallas 1956, no writ)
(involving a zoning ordinance purporting to bar the operation of a nursery in a single
family dwelling).
Again, we have before us a zoning ordinance expressly defining the terms
“Hospital” and “Convalescent Center” as structures used or occupied by sick, injured or
older people 1) needing to recuperate and 2) receiving medical or surgical care who
remain for some duration and at least overnight. If the property use falls within those
categories, then they are permissible at the locale in question.
On the other hand, a business that 1) treats people for “chronic” (i.e. persisting or
recurring) diseases or provides a place to recuperate under medical supervision (e.g. a
hospital), or 2) allows “convalescents” (e.g. those recovering from illness or surgery) to
remain while improving or maintaining their health (e.g. a convalescent center) cannot
be located there since it is a “Sanitarium,” given the City's purported definition of the
term. To accept the City's interpretation of sanitarium would be to arrive at an absurd
result, construe an undefined term in a way inconsistent with a defined term, and nullify
a like meaning expressly given other words in the ordinance.
The same conduct encompassed yet prohibited by the City's definition of
“Sanitarium” is the same conduct encompassed and permitted by the expressed
definitions of “Hospital” and “Convalescent Center.” Under its definition a governmental
employee tasked with deciding whether to issue a certificate of occupancy could
effectively tell one applicant “well . . . you are administering chemotherapy to people
who have lung cancer and letting them recuperate from a treatment . . . so you are
running a convalescent center or hospital” while telling the next applicant “well . . . you
7
are giving chemotherapy to people with lung cancer, a chronic and often recurring
disease, and letting them recuperate . . . so you are operating a sanitarium.” Such
whimsy we cannot facilitate by adopting what the City offers as the meaning of
“Sanitarium.”
The definition sought to be imposed is inconsistent with the expressed
definition and effect of being a “Hospital” and a “Convalescent Center.”
At the very
least, it creates an ambiguity in the application of the ordinance. The same conduct
may or may not be a permitted use, and that ambiguity must be resolved in a manner
favoring the Reinkes.
In sum, a business conducting operations within the zoning ordinance's
expressed definition of “Hospital” and “Convalescent Center” is either a “Hospital” or
“Convalescent Center” for purposes of B-2 zoning. Again, if it quacks, walks, etc, it is
that duck. The trial court concluded as much, and we agree with its decision. The
judgment of the trial court is affirmed.4
Brian Quinn
Chief Justice
4
It appears that the City moved to dismiss the appeal as moot since the Reinkes allegedly sold
the property in question. Yet, ownership of the property is not a prerequisite to attacking a zoning
decision as illegal. A “person aggrieved by a decision” of the zoning board of adjustment or “a taxpayer”
may pursue the matter. TEX. LOCAL GOV. CODE ANN. § 211.011(a) (West 2008). That the Reinkes were
aggrieved by the zoning decision at issue here cannot be denied. Furthermore, nothing of record
illustrates that the Reinkes lost their status as taxpayers. Finally, the purchasers were the entity
benefitting from the designation of the property as a B-2 use. Should that entity default in its obligation to
pay, then the Reinkes may foreclose on its lien and sell the realty. Whether the property retains its B-2
status could well affect its value upon resale at foreclosure, which in turn would affect the value received
by the Reinkes. Thus, they remained aggrieved because a property right they retained is subject to
adverse impact if the appeal were dismissed and the trial court judgment were reversed, as requested by
the City. In short, their dog is still in the hunt though it may not be leading the pack. The motion to
dismiss is denied.
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