       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-02-00377-CV




                               John Zamora and PCM Investments, Inc.
                                d/b/a Junior=s Beer & Wine, Appellants

                                                      v.

                                         City of Austin, Appellee




         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
               NO. GN000441, HONORABLE PAUL DAVIS, JUDGE PRESIDING




                 This case involves a writ of certiorari in the district court from a decision of the Austin

Board of Adjustment interpreting certain Austin zoning regulations. Appellants John Zamora and PCM

Investments, Inc., d/b/a Junior=s Beer & Wine, (collectively AJunior=s@) appeal the district court=s summary

judgment. See Tex. R. Civ. P. 166a(b), (i). The issue for our determination is whether the district court

erred by upholding the Board of Adjustment=s zoning decision that Junior=s may not make ice for wholesale

distribution in a general commercial services zoning district. We will affirm.


                                             BACKGROUND

                 Junior=s is located on property that is currently zoned for general commercial services

(hereinafter ACS@) under the City zoning regulations. Junior=s has sold beer, wine, and ice at this location for
approximately twenty years.1 Appellants and the City agree that the on-site retail sale of beer, wine, and ice

from this property is a permitted use in CS zoning. Junior=s sells about 15,000 forty-pound bags of ice per

year as part of its retail business. Until 1997, Junior=s also sold between 25,000 and 30,000 bags at off-site

locations. In total, Junior=s was producing about 45,000 bags of ice a year. In 1997, Junior=s received a

building permit to install a new, larger ice machine on its premises to replace three older and smaller ice

machines. Since that installation, eighty percent of the ice Junior=s now manufactures, approximately 65,000

bags, has been distributed wholesale from refrigerated trucks which are often kept, fully stocked and with

their refrigerator units running, in the alley between the business and the neighborhood residences. Junior=s

ice-making capacity was, at the time suit was brought, approximately 80,000 bags per year.

                 In 1999, neighbors complained to the City about the impact of increased ice production at

Junior=s on the enjoyment of their property. See Austin, Tex., Code ' 25-2-2(A) (2001). The complaints

included grievances against the new machine=s noise and the traffic and noise disturbances caused by

appellants= trucks. In response to such complaints, a city building official is to formally determine the

appropriate use classification. Id. Janet Gallegher, a City Inspection Services Manager, acting as a city

building official, determined that the appropriate use classification for producing ice for off-site distribution

was limited industrial services (hereinafter ALI@). On October 2, 1999, the City notified appellants that

wholesale distribution of ice at Junior=s was a violation of the City Code.




        1
            Zamora and PCM Investments, Inc., acquired the property in the early nineteen nineties.



                                                       2
                 Appellants appealed the City=s determination to the Austin Board of Adjustment (Athe

Board@). See Austin, Tex., Code ' 25-2-2(C) (2001). Appellants argued that the wholesale distribution of

ice could be conducted on the property under an appropriate interpretation of CS zoning. Appellants also

argued that the wholesale distribution for off-site use is an Aaccessory use@ to CS zoning and therefore

allowed. See Austin, Tex., Code ' 25-2-891 (2000). In support of the earlier determination, Gregory

Gneusey, a City Principal Planner, submitted a response letter on behalf of the City taking the position that

the off-site ice distribution was not an authorized accessory use in a CS zoned district. This argument was

based in part on a 1982 determination of this property=s principal use and associated accessory uses, and in

part on a earlier determination, involving a different property, that the wholesale distribution requires, at

minimum, an LI zoning designation.2 Appellants responded that this interpretation constituted arbitrary

enforcement of the zoning requirements, affecting their property rights, because other businesses located in

CS zoned districts in Austin were conducting similar businesses, i.e., wholesale product distribution.


        2
           Section 25-2-891 defines an Aaccessory use@ as a use that Ais incidental to and customarily
associated with a principal use.@ Austin, Tex., Code ' 25-2-891 (2000). In 1982, a Board decision
regarding the addition of a cooler on appellants= property determined that its principal use was retail sales of
beer and wine. The Board permitted the coolers in that case because they were considered accessory uses
to the retail commercial operation of this property since they were used for cooling kegs of beer. The
manufacturing and selling of retail ice was also considered an Aaccessory use@ to the primary use of the sale
of beer and wine.




                                                       3
                 The Board is responsible for hearing and deciding appeals of a building official=s

interpretation of the meaning or intent of the zoning regulations, including determinations of the appropriate

use classifications of any existing or proposed use or activity.3 Austin, Tex., Code ' 25-2-475 (2000).

After a contested-case hearing, the Board denied the appeal and upheld the City=s interpretation of the

zoning ordinances prohibiting Junior=s wholesale ice distribution operation. The Board determined that,

pursuant to the CS zoning designation, Junior=s could continue to manufacture and sell ice, but only on-

premises. Furthermore, the Board decided that Junior=s wholesale distribution of ice off-premises was a

violation of the Austin City Code.4

                 Appellants then sought judicial review of the Board=s decision. See Tex. Loc. Gov=t Code

Ann. ' 211.011 (West Supp. 2002). The trial court granted the City=s motion for summary judgment and

upheld the Board=s interpretation. In this appeal, appellants argue that the Board abused its discretion by

upholding the City staff=s zoning interpretation that Junior=s may not make ice for wholesale distribution in a

CS zoned district.


                                              DISCUSSION


        3
          The Board is a citizen board established and appointed by the City Council to assist the City in
certain land use decisions under the City Code. See Austin, Tex., Code ' 2-4-543 (2000).
        4
           The issue the Board had to decide was whether the wholesale distribution of ice was a commercial
or industrial use under the City=s zoning district classifications. Commercial CS zoning serves different
purposes than the industrial LI zoning. Although the City code permits Alimited warehouse and
distribution@on property in a CS zoning district, the Board concluded that appellants wholesale distribution
of ice did not fall into this Alimited@ category. Instead, the Board agreed with the City=s application of the
zoning ordinances and determined that the wholesale distribution of ice was an industrial use proper only in
an industrial zoning district.

                                                      4
                 The primary issue in this case is whether the Board=s determination was a reasonable

interpretation of permitted uses of this property under the City=s zoning district classifications. A City

building official determined that ice manufacture with off-site distribution was an industrial use that was

impermissible in a CS zoning district. The Board affirmed that interpretation. Appellants propose an

alternative interpretation of the CS zoning classification, given the facts of this case.

                 Appellants contend that the property=s CS zoning classification expressly permits the use of

the property for Alimited warehousing and distribution@ under sections 25-2-5(B)(5) and 25-2-491. Austin,

Tex., Code '' 25-2-5(B)(5) (1999), 25-2-491 (2001). The wholesaling of ice in a CS zoned district, they

argue, is an acceptable accessory use under section 25-2-891. To support this position, appellants

produced anecdotal evidence that other distributors of food and beverage products, located in CS zones in

Austin, manufacture their products for wholesale distribution.5 Appellants contend that the Board ignored


        5
           Appellants= counsel testified at the Board=s hearing that businesses such as the Goodflow Juice
Company, Texas French Bread, Amy=s Ice Cream, and Sweetish Hill Bakery were all located in CS zoning
districts. He further testified that each of these businesses manufactures a food or beverage product which
is sold retail at the site and distributed wholesale from the site. However, we find it significant that the
wholesale operation in all of these examples involved products that were the business=s primary use: i.e.,




                                                       5
this evidence and Aonly listened to what the City staff said in furtherance of its position in this politicized

situation.@ Because the evidence could be interpreted in two different ways, appellants argue that the Board

abused its discretion by upholding the City=s interpretation of permitted uses in the CS zoned district.




production of juice, baked goods, or ice cream. Junior=s is a beer and wine store; off-site wholesale ice
distribution without any related sale of alcohol is not necessarily even an accessory use of the property.
No prior building official determination indicates that the wholesale distribution from any of the other
mentioned businesses was determined to be an allowable use of that property. As the City argues, its
zoning controversies are complaint-driven, and the City has received no citizen complaints regarding the
anecdotal businesses. Thus, we are not presented with a situation in which the Board has exercised its
authority inconsistently.




                                                      6
                Judicial review of the Board=s decisions is governed by section 211.011 of the Texas Local

Government Code.6 Tex. Loc. Gov=t Code Ann. ' 211.011 (West Supp. 2002). The Board is a quasi-

judicial body and a district court sits only as a court of review by writ of certiorari. Tex. Loc. Gov=t Code

Ann. '' 211.009-.011 (West Supp. 2002). Review under section 211.011 Adiffers from the majority of

Texas statutes prescribing the procedure for the review of orders of administrative bodies.@ Board of

Adjustment v. Stovall, 216 S.W.2d 171, 172 (Tex. 1949); City of San Angelo v. Boehme Bakery, 190

S.W.2d 67, 69 (Tex. 1945). In a certiorari proceeding, the only question that may be raised by the petition

is the Aillegality@ of the Board=s decision. Tex. Loc. Gov=t Code Ann. ' 211.011(a); Boehme Bakery, 190

S.W.2d at 70. In this quasi-administrative appeal, we review the legality of a board=s decisions to determine

whether the district court abused its discretion in affirming the Board. Pearce v. City of Round Rock, 78

S.W.3d 642, 646-47 (Tex. App.CAustin 2002, pet. denied).

                To establish that an order of the board is illegal, the party attacking the order must present a

clear showing that the board abused its discretion.           See Nu-Way Emulsions, Inc. v. City of


        6
          The Local Government Code permits a district court to grant a writ of certiorari directed to the
Board to review its decision. See Tex. Loc. Gov=t Code Ann. ' 211.011. Certiorari is a procedural
mechanism by which a reviewing court can Ademand of an inferior court or body that it send up the record
of the proceedings in the matter under review in order that the legality thereof might be tested to determine
whether the lower court or body had acted within its proper jurisdiction.@ City of San Angelo v. Boehme
Bakery, 190 S.W.2d 67, 70 (Tex. 1945).




                                                      7
Dalworthington Gardens, 617 S.W.2d 188, 189 (Tex. 1981); Boehme Bakery, 190 S.W.2d at 70. To

find an abuse of discretion, a reviewing court must conclude that the board acted without reference to any

guiding rules or principles of law or acts arbitrarily and unreasonably. See Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The reviewing court may not put itself in the

position of the board thereby substituting its wisdom, judgment, and discretion for that of the board. Boehme

Bakery, 190 S.W.2d at 70. Instead, it may only ask whether the board correctly analyzed and applied the

zoning ordinance. Pearce, 78 S.W.3d at 646. As long as some evidence of substantive and probative

character exists to support the board=s decision, the board has not abused its discretion. Southwest Paper

Stock, Inc. v. Zoning Bd. of Adjustment, 980 S.W.2d 802, 805-806 (Tex. App.CFort Worth 1998, no

pet.).

                 In reaching its decision to uphold the City building official=s interpretation, the Board applied

its established decision-making process for reviewing and interpreting a City building official=s determinations.

The Board had before it evidence of two alternative, acceptable interpretations of the zoning ordinance. On

the one hand, the Board had appellants= anecdotal evidence and its reliance on City zoning provisions

allowing Alimited warehouse and distribution@ in a CS zoning district. On the other, the Board had the City=s

evidence supporting the building official=s interpretation and a prior building official=s determinations regarding

other ice companies. The City argued, based on a prior building official=s determination, that appellants= ice

wholesaling and distribution exceeded the uses permitted by Alimited warehousing and distribution@ under '

25-2-5(B)(5) in a CS zone. The City also presented evidence to the Board that the wholesale distribution of




                                                        8
ice from this property was not an accessory use to Junior=s primary business, which is the sale of beer and

wine.

                Although there was conflicting evidence before the Board, the Board did not abuse its

discretion by basing its decision on conflicting evidence. See Davis v. Huey, 571 S.W.2d 859, 862 (Tex.

1978). The Board chose between two competing interpretations of the CS zoning requirements regarding

the permitted use of this property. Unless, in reviewing the record, we conclude that the Board, as fact

finder, could have only reached a conclusion favoring the appellants, we presume the Board did not abuse its

discretion. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); Board of Adjustment v. Flores,

860 S.W.2d 622, 626 (Tex. App.CCorpus Christi 1993, writ denied). We have reviewed the record and

hold that the record contains evidence to support the Board=s decision. Therefore we overrule appellants=

issue.


                                            CONCLUSION

                Having overruled appellants= issue, we hold that the trial court appropriately granted the

City=s motions for summary judgment. Accordingly, we affirm its decision.




                                                 __________________________________________

                                                 Mack Kidd, Justice

Before Justices Kidd, Yeakel and Puryear

Affirmed

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Filed: December 12, 2002

Do Not Publish




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