Court orders ZBOA to issue certificate of occupancy since “[t]he proposed use of the property in question looked, swam, and quacked like a ‘Hospital’ and ‘Convalescent Center'”

City of Glen Rose, Texas and the Zoning Board of Adjustments of the City of Glen Rose, Texas v. Ernest and Shirley Reinke, 07-15-00266-CV (Tex. App. – Amarillo, February 8, 2016),

This is an appeal from a ZBOA decision regarding the denial of a certificate of occupancy. The Amarillo Court of Appeals affirmed the granting of the petitioner’s appeal of the ZBOA.

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 City Administrator denied the request  noting the application was more akin to a sanitarium and such denial was affirmed by the ZBOA.  The Reinkes appealed to district court, which granted their motion for summary judgment and ordered the ZBOA to issue a certificate of occupancy. The City and ZBOA appealed.

The court first determined the ZBOA appeal was on the certificate of occupancy (“CofO”), not the Reinkes’ application for special use permit, which was denied previously. As a result, the only issue is the CofO.  Next, under Tex. Loc. Gov’t Code §211.011 the only question the trial court has in such a proceeding is deciding “the legality of the zoning board’s order.” 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.” After analyzing the City’s zoning code, the court determined 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 the desired certificate of occupancy should have been issued. Strike a bit of humor the court noted “[w]e 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[.]’” 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. After applying various cannons of statutory construction, the court determined the Administrator’s definitions were inconsistent with the ordinance. The summary judgement for the Reinkes was therefore affirmed.

If you would like to read this opinion, click here.  Panel Chief Justice Quinn, Justice Campbell, and Justice Hancock.  Opinion given by Chief Justice Quinn.  Attorney for the Appellee is Stuart V. Neal.  Attorneys for the Appellant are Wayne K. Olson, Brady Pendleton, Ashley Dierker, and Fredric