The City of Corpus Christi v. Yehuda Azoulay--Appeal from 105th District Court of Nueces County

 NUMBER 13-04-592-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THE CITY OF CORPUS CHRISTI, Appellant,

v.

YEHUDA AZOULAY, Appellee.

On appeal from the 105th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Garza

This case involves a writ of certiorari in the district court from a decision of the Zoning Board of Adjustment (the ABoard@) for the City of Corpus Christi (the ACity@). See Tex. Loc. Gov't Code Ann. '211.011 (Vernon Supp. 2005-06).

I. Background

Appellee, Yehuda Azoulay, was denied a permit to construct a three-dimensional shark structure at the entrance of his business. The permit was denied by the City because the structure was determined to be a Asign@ as defined by the City Zoning Ordinance (the Aordinance@) in violation of the B2-A Barrier Island Zoning Ordinance (the AB2-A@), which restricts the size of signs to 100 square feet or less. Appellee appealed the City=s decision to the Board. The Board affirmed the City=s decision. Appellee appealed the Board=s decision to the district court by writ of certiorari. See id. The district court reversed the Board=s decision holding that it was illegal because (1) the shark structure is not a sign, and (2) even if the shark structure is a sign, it is not in violation of the applicable zoning ordinance.

The City and the Board now appeal the district court=s judgment reversing the Board=s decision and ordering the City to issue a building permit approving the shark structure. On appeal, the City and the Board contend that (1) the district court abused its discretion by substituting its judgment for that of the Board, (2) the district court erred in admitting substantial new evidence, (3) the district court=s judgment that the decision of the Board is illegal is not supported by legally or factually sufficient evidence, (4) the district court=s finding that the shark structure is not a sign is not supported by legally or factually sufficient evidence, and (5) the district court=s alternative finding that even if the shark structure is a sign, it is not in violation of the zoning ordinance was not properly before the court and is not supported by legally sufficient evidence. We affirm.

II. Application of Zoning Ordinance

In their first, third and fourth issues, appellants contend that the trial court erred by concluding that the Board=s order is illegal, by holding that the shark structure is not a sign, and by substituting its judgment for that of the Board. We consider appellants= first, third and fourth issues together to determine whether the trial court abused its discretion in its limited review of the legality of the Board=s decision. See Pearce v. City of Round Rock, 78 S.W.3d 642, 646-47 (Tex. App.BAustin 2002, pet. denied).

Judicial review of the Board=s decisions is governed by section 211.011 of the Texas Local Government Code. See Tex. Loc. Gov't Code Ann. ' 211.011(a) (c). We must determine whether the trial court abused its discretion in reversing the Board. City of San Angelo v. Boehme Bakery, 190 S.W.2d 67, 70 (Tex. 1945); Pearce, 78 S.W.3d at 646-47. The trial court=s role in these matters is to review the legality of the Board=s decision. Boehme Bakery, 190 S.W.2d at 70. The legality of the Board=s decision is a question of law; therefore, in reviewing the Board=s order, the trial court asks whether, in making its determination, the Board abused its discretion. Id.; Tellez v. City of Socorro, 164 S.W.3d 823, 829 (Tex. App.BEl Paso 2005, pet. filed); City of Alamo Heights v. Boyar, 158 S.W.3d 545, 549 (Tex. App.BSan Antonio 2005, no pet.); Pearce, 78 S.W.3d at 646; Pick N Pull Auto Dismantlers v. Zoning Bd. of Adjustment, 45 S.W.3d 337, 340 (Tex. App.BFort Worth 2001, pet. denied). To find an abuse of discretion, a reviewing court must conclude that the Board acted without reference to any guiding principles of law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The Board=s decision is presumed to be legal, and a party attacking it bears the burden of establishing that the Board clearly abused its discretion. See Pearce, 78 S.W.3d at 646; see also Pick N Pull Auto Dismantlers, 45 S.W.3d at 340. In determining whether the Board abused its discretion, the trial court is not to put itself in the position of the Board and substitute its discretion for that of the Board. See Boehme Bakery, 190 S.W.2d at 70. Because a board of adjustment has no discretion to determine the law, a failure to correctly analyze or apply the law constitutes an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). This Court reviews a trial court=s decision on a question of law de novo. Tex. Dep=t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

In the present case, the parties dispute the meaning of a municipal ordinance:

The term Asign@ shall mean and include every device, structure, frame, letter, figure, character, mark, plane, point, design, picture, stroke, stripe, trademark, or reading matter which is used or intended to be used to attract attention, convey information, identify or advertise any establishment, product, goods or service when the same is placed out of doors in view of the general public. The term >sign= shall not include a similar structure or device located within a building except illuminated signs within windows. The term >sign= shall not include the flag or pennant, or insignia of any nation or association of nations, or of any state, city, or other political unit, or of any charitable, educational, philanthropic, civic, or religious organization.

Corpus Christi, Tex. Rev. Ordinances, art. 3-1.55.

Appellants argue that the shark structure is a sign because it is used or intended to be used to attract attention, and is placed out of doors in view of the public. Appellants contend that any outdoor structure which is in view of the public is a Asign@ if it is used or intended to be used to attract attention. Appellee concedes that the shark structure would qualify as a sign under this test, but maintains that the test, as suggested by appellants, is an erroneous interpretation of the ordinance. Appellee contends that, in order to be a sign as contemplated by the ordinance, the shark structure must, in addition to attracting attention and being placed out of doors, also be used or intended to be used to convey information and identify or advertise the establishment, product, goods, or service. Appellee argues the shark structure does not Aconvey information@ and does not Aidentify or advertise . . . .@

In construing an ordinance, courts use the same rules as when construing a statute and seek to discern the intent of the enacting body. Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002). When construing statutes, the plain meaning of words is to be given effect whenever practicable. See id.; Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 479 (Tex. 2001) ("A basic rule of statutory construction is that we enforce the plain meaning of an unambiguous statute."). If words and phrases are not defined by the enacting body, the courts should apply the ordinary meaning of the words or phrases. Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993). Courts are to read every word, phrase, and expression as if it were deliberately chosen and presume that words excluded from the statute were excluded purposefully. Gables Realty Ltd. P=ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex. App.BAustin 2002, pet. denied). We should consider the associated words and the context in which they appear when construing a phrase within a statute. Bridgestone /Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994).

If the meaning of an ordinance is doubtful or ambiguous, the court should give serious consideration to the construction given by the body charged with its enforcement or administration. Texans to Save the Capitol, Inc. v. Bd. of Adjustment, 647 S.W.2d 773, 776 (Tex. App.BAustin 1983, writ ref=d n.r.e.). ATexas courts [however,] have universally adopted the >clear and unambiguous meaning= test,@ under which courts may Ainterpret the ordinance only if the language=s meaning is not clear and plain on the law=s face. If the language is clear and plain, the court is bound by the language=s >plain meaning.=@ Id. at 775 n.4; see also Seawell East Townhomes Ass=n, Inc. v. City of Galveston, 879 S.W.2d 363, 364 (Tex. App.BHouston [14th Dist.] 1994, no writ) (AWhen the words in an ordinance or statute are clear, the ordinance must be given its literal interpretation.@). AIn other words, if the disputed phrase is clear and unambiguous, extrinsic aids and rules of construction are inappropriate and the ordinance should be given its common meaning.@ City of Austin v. Hyde Park Baptist Church, 152 S.W.3d 162, 166 (Tex. App.BAustin 2004, no pet.).

The ordinance in this case is unambiguous. A sign must (1) attract attention; (2) convey information; (3) identify or advertise any establishment, product, goods, or services; and (4) be outdoors in view of the general public. We find nothing in the language of the ordinance to support the Board=s interpretation that the structure only need attract attention to constitute a sign. The ordinance contemplates a structure meeting all four of the prongs enumerated above.[1] No disjunctive component divides the string of elements used to define the term Asign.@

Appellants have not met their burden to show that the trial court abused its discretion in determining that all prongs must be met and that the Board=s decision was illegal. We find no error in this conclusion of law and therefore no abuse of discretion by the trial court. Accordingly, we overrule appellants= first, third, and fourth issues.

III. Admission of New Evidence

In their second issue, appellants contend the district court erred in admitting new evidence not presented before the Board. Specifically, appellants complain of the inadmissibility of exhibits 7, 9, 11, and 12. The record reflects that appellants objected to the complained-of evidence on grounds that the evidence was not part of the record before the Board and therefore, inadmissible before the trial court. The trial court overruled the objection and admitted the exhibits. Section 211.011 provides that Aif at the hearing the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence . . . .@ Tex. Loc. Gov't Code Ann. ' 211.011(e). Under section 211.011, the trial court was entitled to receive additional evidence. See id; see also Board of Adjustment of Dallas v. Patel, 882 S.W.2d 87, 89 (Tex. App.BAmarillo 1994, writ denied)(stating that in determining whether the board of adjustment abused its discretion, the district court can consider the Board's verified return along with evidence introduced in the trial court); Board of Adjustment of City of Corpus Christi v. McBride, 676 S.W.2d 705, 706 (Tex. App.BCorpus Christi 1984, no writ); City of Lubbock v. Bownds, 623 S.W.2d 752, 755 56 (Tex. App.BAmarillo 1981), overruled on other grounds, 865 S.W.2d 941, 942 (Tex. 1993).[2] Appellants have not directed our attention to any case law suggesting otherwise. Accordingly, we overrule appellants= second issue.

IV. District Court=s Alternative Finding

In their fifth issue, appellants assert that the trial court=s alternative finding (that even if the shark entrance is a sign, it is not in violation of the applicable zoning ordinance) concerned a matter that was not properly before the court and is supported by legally insufficient evidence. Given our disposition of appellants= first, third and fourth issues we need not address this issue. Tex. R. App. P. 47.1

We affirm the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 4th day of May, 2006.

[1] Although we need not consider parol evidence, we find the testimony of Barbara Bailey, Director of Development Services for the City, supportive of our conclusion that the ordinance contemplates a structure meeting all four prongs. Bailey testified that the zoning ordinance is a four-pronged test and if a structure does not meet all four prongs, it does not come within the meaning of the ordinance.

[2] However, the reviewing court=s decision may not be based solely upon the additional evidence. City of Lubbock v. Bownds, 623 S.W.2d 752, 756 (Tex. App.BAmarillo 1981), overruled on other grounds, 865 S.W.2d 941, 942 (Tex. 1993) (quoting City of San Angelo v. Boehme Bakery, 190 S.W.2d 67, 70 (Tex. 1945)). Instead, it must review both the materials returned by the Board in response to the writ of certiorari and the evidence received under ' 211.011(e). Id. Appellants have not raised the contention that the court=s decision was based solely upon the additional evidence.