Developer’s second permit application merely attempted to relabel aspects of first application, so no timely appeal

Jay Anthony v. The Board of Adjustment of the City of Stephenville, Texas; Cause No. 11-12-00159-CV (Tex. App. Eastland, July 10, 2014).

This is a Board of Adjustment appeal from the denial of a permit to operate a convenience store.

Anthony wanted to create a convenience store with two enclosed drive-through lanes but such a store was not a classified use. The City placed a proposed zoning amendment on the P&Z Commission agenda to clarify the use and allow the construction. The P&Z did not approve the amendment. The City Council essentially kept referring the matter back to the P&Z every time it was presented. Anthony did not appeal this back and forth. However, he then attempted to get building permits on two separate occasions listing the business as “Cowboy’s Convenience Store” which were denied each time.  The City Attorney noting the use was not permitted and the issue was already ruled upon. Finally, Anthony appealed the denial of the second building permit to the BOA which denied the appeal and Anthony appealed to district court. The BOA filed a plea to the jurisdiction and summary judgment. The trial court granted the plea and denied the MSJ. Anthony appealed.

The dispositive issue addressed by the court is whether the second building permit was materially different than the first since Anthony never appealed the first denial. Anthony argued the second application was different because even though the name was the same (minus the “s” in Cowboys), it listed the business as “retail store other than listed” and second that the drive through lanes in the first application were listed as “covered parking” in the second. The court determined the distinctions listed by Anthony are merely the relabeling of the same information in an attempt to resubmit the same application. The footprint is the same, the store structure is substantially similar, and the covered parking could easily act as a drive through. The second application did not materially change the nature of the case under the zoning ordinance. Since Anthony did not appeal the denial of the first application, he failed to exhaust his administrative remedies and the trial court lacked jurisdiction over the appeal.

If you would like to read this opinion, click here. Panel: Justice Wright, Justice Willson and Justice Bailey. Opinion issued by Justice Wright. Attorney for Appellant Jay Anthony is Arthur Anderson. Attorneys for Appellee City of Stephenville are Wayne Olson and Frederick Quast.