Reinkes WIN In City of Glen Rose's Appeal Against Them in City of Glen Rose v ReinkeSomervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas

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More technically, City of Glen Rose LOSES their appeal

Reinkes WIN In City of Glen Rose's Appeal Against Them in City of Glen Rose v Reinke

12 February 2016 at 10:25:00 AM

specifically "City of Glen Rose, Texas and the Zoning Board of Adjustments of the City of Glen Rose, Texas v. Ernest and Shirley Reinke". To be technical, the Reinkes won their case against City of Glen Rose in the trial court, the City of Glen Rose decided to lodge an appeal, and the City of Glen Rose has lost the appeal. 

The next question is, who will be paying all the court costs, attorney fees, etc for the Reinkes? 



Selected bits (highlighting is mine) 

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 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 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 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 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 cons1d 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 cons1 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 cons1d 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 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, cons1 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 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 


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