      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00188-CV



             National Media Corporation and Anchor Equities, Ltd., Appellants

                                                   v.

                                      City of Austin, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
      NO. D-1-GN-10-003997, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


        National Media Corporation and Anchor Equities, Ltd. (together, National Media) appeal

the trial court’s order granting the City of Austin’s motion for summary judgment. The suit concerns

the denial of National Media’s application for the registration of a sign. The parties are familiar with

the facts and procedural history. Accordingly, we will not recite them here except as necessary to

advise the parties of the court’s decision and basic reasons for it. See Tex. R. App. P. 47.4. We will

reverse the trial court’s order and remand to the trial court for action consistent with this opinion.


Standard of Review

                When a party requests judicial review of a Board of Adjustment (Board) decision,

it is asking the court to determine that the Board’s decision was illegal, in whole or in part. See

Tex. Loc. Gov’t Code § 211.011(a). “The court may reverse or affirm, in whole or in part, or modify

the decision that is appealed.” Id. § 211.011(f). The legality of the Board’s decision is a question
of law. See Pearce v. City of Round Rock, 78 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied).

Thus, a reviewing court must determine whether the Board abused its discretion by acting “without

reference to any guiding rules or principles of law.” Id. (citing Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). The Board’s “failure to correctly analyze or apply the

law” is an abuse of discretion and constitutes an illegal decision. See id. (citing Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992)). Because the legality of the Board’s decision is a question of

law, we address all questions presented in the cross-motions for summary judgment. See Guynes

v. Galveston Cnty., 861 S.W.2d 861, 862 (Tex. 1993).


                                          DISCUSSION

               In this appeal, National Media contends that the City acted arbitrarily or capriciously

when it used Zoning Code provisions governing “abandonment of non-conforming use” to justify

denying National Media’s sign registration application. National Media argues that sign registration

applications should only be governed by the Sign Regulations Code. Further, National Media argues

that the Board abused its discretion when it affirmed the City’s use of the Zoning Code provisions.

National Media urges this court to give no deference to the Board’s determination. The City argues

that National Media failed to demonstrate that the Board’s decision was illegal.1

               We find that the City acted arbitrarily and capriciously when it applied the Zoning

Code in its rejection of National Media’s sign registration application. As this Court has previously

stated, when determining whether an entity has acted arbitrarily or capriciously, “[t]he major factor


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        The City also argues that National Media failed to properly preserve the issues argued on
appeal. We disagree and thus proceed with a review of the substantive issues presented.

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that runs throughout [the] . . . review . . . is that parties must be able to know what is expected of

them in the administrative process.” Starr Cnty, v. Starr Indus. Servs., Inc., 584 S.W.2d 352, 356

(Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.) (determining that Texas Water Quality Board acted

arbitrarily and capriciously when it denied permit based on requirements that had not been previously

proposed by Board). National Media could not have expected that the City would deny its registration

application based upon the Zoning Code. Neither the language of the Sign Regulations Code nor

any previous determinations by the City put National Media on notice that the Zoning Code applied.

               Additionally, we find that the Board abused its discretion in affirming the City’s

determination. The City seems to argue the doctrine of in pari materia as it urges this Court to find

that the Board correctly affirmed the use of the Zoning and Sign Regulations Codes. As this Court

has previously noted, in an in pari materia analysis, the “most important factor . . . is similarity of

object or purpose” between two statutes that do not specifically reference each other. In re J.M.R.,

149 S.W.3d 289, 291 (Tex. App.—Austin 2004, no pet.) (holding that sections of Penal Code

and Education Code were not in pari materia). Specifically, “[s]tatutes are in pari materia if they

touch upon the same subject, have the same general purpose, and relate to the same conduct.” Id.

at 292; see also Texas State Bd. of Chiropractic Exam’rs v. Abbott, 391 S.W.3d 343, 348-49

(Tex. App.—Austin 2013, no pet.). We find that the codes at issue here are not in pari materia.

The Zoning Code regulates property use within the City’s zoning jurisdiction in the categories

of residential, commercial, industrial, civic, and agricultural use. See Austin, Tex., Zoning Code

§ 25-2 (1999). The Zoning Code makes no specific reference to the use and regulation of signs,

which often do not fall neatly into one of the five categories described in the statute. The Sign



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Regulations Code, however, is both specific and comprehensive in its regulation of signs, including

the one at issue before us now. It is clear that the two codes do not touch upon the same subject,

do not have the same general purpose, and do not relate to the same conduct. In the absence of a

specific reference to signs in the Zoning Code, one could not reasonably conclude that there is a

similarity of object or purpose between the Zoning and the Sign Regulations Codes.

                To the extent that the City based its determinations on the belief that the Zoning Code

was applicable to signs, we will engage in an analysis of the rules of statutory construction that are

used to resolve conflicts between statutes. When statutes are in conflict, “it is the duty of the courts

to resolve inconsistencies and effectuate the dominant legislative intent.” Texas Dep’t of Pub. Safety

v. Schaejbe, 687 S.W.2d 727, 728 (Tex. 1985). The rules of statutory construction that allow courts

to resolve inconsistencies require that we favor the use of specific ordinances over general ones.

See Texas Indus. Energy Consumers v. Centerpoint Energy Houston Elec., LLC, 324 S.W.3d 95, 107

(Tex. 2010) (citing Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 86 (Tex. 2006)). As previously

noted, the Sign Regulations Code is very specific in its application to signs. See Austin, Tex., Sign

Regulations Code § 25-10-1 (1999). The Zoning Code, on the other hand, does not mention signs

in any of its provisions. See Austin, Tex., Zoning Code § 25-2 (1999). Further, we must assume

that more recently enacted ordinances control over older ones. See Tex. Gov’t Code §§ 311.025(a),

312.014(a). The Sign Regulations Code was enacted in 1992 while the version of the Zoning Code

that categorizes property uses—and describes non-conforming uses—was enacted in 1984. See

Austin, Tex., Sign Regulations Code §§ 13-2-850–13-2-927 (1992) (current version at Austin, Tex.,

Sign Regulations Code § 25-10 (1999)); Austin, Tex., Zoning Code § 13-2A (1984) (current version



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at Austin, Tex., Zoning Code § 25-2 (1999)). Finally, we must assume that the legislative body had

knowledge of all existing laws and crafted the ordinances accordingly. See Dugger v. Arredondo,

408 S.W.3d 825, 835 (Tex. 2013). Here we presume that the city council, having included an

“abandonment of non-conforming use” provision in the Zoning Code, intentionally excluded a

similar provision and any accompanying time limitations in the later-enacted Sign Regulations

Code. Accordingly, we hold that the Board clearly abused its discretion when it affirmed the

City’s use of the Zoning Code’s abandonment provisions in its denial of National Media’s sign

registration application.

               Because the City applied the wrong ordinance in its determination and the Board

upheld that improper use, we need not discuss in depth whether deference should be given to either

entity—we will not defer to the City or the Board when the law they are interpreting is inapplicable.

The Texas Supreme Court has held that some deference may be given to an agency’s interpretation

of a statute when that interpretation is reasonable and the statute is ambiguous. See Feiss v. State

Farm Lloyds, 202 S.W.3d 744, 747-48 (Tex. 2006). Inherent in that standard is the idea that the

statute being interpreted applies to the question at hand. We find that in this case the Zoning Code

is simply inapplicable.


                                          CONCLUSION

               The Board’s decision to affirm the City’s determination was illegal. We reverse the

trial court’s order and remand the cause to the trial court for action consistent with this opinion.




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                                           __________________________________________

                                           David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Goodwin

Reversed and Remanded

Filed: August 27, 2014




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