                   NUMBER 13-10-011-CV

                  COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI - EDINBURG


SEA MIST COUNCIL OF OWNERS,                          Appellants,
A HOMEOWNERS ASSOCIATION IN
SOUTH PADRE ISLAND, CAMERON
COUNTY, TEXAS AND MICHAEL BOWELL,
RAY L. HUNT, AND NANCY HUNT,

                             v.

TOWN OF SOUTH PADRE ISLAND
BOARD OF ADJUSTMENTS,                                    Appellees.


           On appeal from the 445th District Court
                of Cameron County, Texas.


                MEMORANDUM OPINION

        Before Justices Rodriguez, Benavides, and Vela
            Memorandum Opinion by Justice Vela
       Sea Mist Council of Owners, a Homeowners Association in South Padre Island,

Cameron County, Texas and Michael Boswell, Ray L. Hunt, and Nancy Hunt (“Sea Mist”),

appeal a judgment affirming an action taken by the Town of South Padre Island Board of

Adjustments (“Board of Adjustments”), that upheld the Board of Adjustments’ decision to

provide a building permit and certificate of occupancy to the Palms, and dismissing Sea

Mist’s declaratory judgment action. By two issues, Sea Mist contends that the trial court

erred in upholding the Board of Adjustments’ decision and erred in dismissing its

declaratory judgment action. We affirm.

                                       I. BACKGROUND

       Sea Mist filed its original petition and application for writ of certiorari on September

13, 2006, complaining of the Board of Adjustments’ zoning decision to provide Palms

Investment Group, Ltd. and PRM Management Company (“Palms”) a building permit to

remodel a condominium unit that would become an establishment that would sell food and

mixed drinks. Sea Mist also complained that the granting of the permit was in violation of

the town’s zoning ordinance that defines the uses of property within zoning District “B.”

Sea Mist claimed that the sale of alcoholic beverages is not allowed in areas zoned as

District “B.”

       Thereafter, Sea Mist filed a motion for summary judgment and declaratory judgment

action. In its motion for summary judgment, Sea Mist argued that a café selling mixed

drinks is a “de facto nightclub as defined by SPI’s [South Padre Island’s] zoning ordinance”

and should be open only to motel guests and not to the general public. The motion also

asked the trial court to declare that the use of the property is illegal and should be

restricted to an allowable use only.

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       The trial court entered an order denying Sea Mist’s summary judgment motion,

dismissing its declaratory judgment action, and affirming the action of the Board of

Adjustments that had been taken on September 5, 2006, which affirmed a staff decision

regarding the certificate for the sale of alcohol and allowed the permit to build the café.

                         II. STANDARD OF REVIEW    AND   AUTHORITIES

       As a quasi-judicial body, the decisions of a zoning board are subject to appeal

before a state district court upon application for a writ of certiorari. See TEX . LOC . GOV’T

CODE ANN . § 211.011 (a), (b) (Vernon 2008); City of Dallas v. Vanesko, 189 S.W.3d 769,

771 (Tex. 2006). The district court sits as a reviewing court, and the only question is the

legality of the zoning board’s order. Vanesko, 189 S.W.3d at 771. To prove that an order

is illegal, the party attacking the order must present a clear showing of abuse of discretion.

Id. A zoning board abuses its discretion if it acts without reference to any guiding rules and

principles. Id. A reviewing court may not put itself in the position of the zoning board and

substitute its findings for those of the zoning board. Christopher Columbus St. Mkt. v.

Zoning Bd. of Adjustments of Galveston, 302 S.W.3d 408, 416 (Tex. App.–Houston [14th

Dist.] 2009, no pet.).

                                        III. ANALYSIS

       In Palms’ response to Sea Mist’s motion for summary judgment, it urged that the

Board of Adjustments used its discretion and relied, in part, upon the historical

interpretation of the language in the zoning ordinance in reaching its conclusion that a

restaurant that sold alcoholic beverages could operate on the premises. Specifically, the

Palms admitted into evidence and relies upon section 20-7 of the Code of Ordinances that



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provided, in part:

              District “B”- Multi-family dwelling, apartment, motel, hotel,
              condominium, townhouse district.

              (B) Use Regulations: In District “B”, no land shall be used and no
       buildings shall be erected for or converted to any use other than:

                     (1) Single family dwellings, . . . hotels, motels, condominiums
       and townhouses. Only condominiums, hotels and motels with more than
       twelve (12) units may have included within the premises such businesses as
       cafes, . . . and other similar businesses if such business is for the
       convenience of the occupants of the building and is definitely an integral part
       of the services of such hotel, condominium or motel.

[South Padre Island] Code of Ordinances § 20-7(2009).

       The Palms also attached a letter from James Mitchim, a building official with the

town of South Padre Island, to the Board of Adjustments, stating that the phrases “such

businesses as” and “other similar businesses” had historically included “many applications

that have had mixed drink permits.” He said that there were several businesses in the “B”

district zone that have or had mixed drink permits, and he permitted such uses at other

businesses, such as the Surf Motel, The Island Inn, and the Upper Deck.

       The evidence presented by the Palms showed that the ordinance has been

interpreted to authorize a liquor license on premises, including a hotel, motel, or

condominium if it has twelve or more units. Palms introduced evidence that it was no

different than any of the other premises that have historically been used as a bar or

restaurant on property zoned as district “B”. There is also nothing in the plain language of

the ordinance that would suggest that the sale of liquor on the premises should be

prohibited.




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       Sea Mist also argues that the certificate, allowing Palms to serve alcohol, should be

revoked because it was inappropriate for the city secretary to certify the area in which

alcoholic beverages were to be served as “wet” and not prohibited by charter or ordinance.

The alcoholic beverage code provides that:

       (a) The county clerk of the county in which an application for a permit is
       made shall certify whether the location or address given in the application is
       in a wet area and whether the sale of alcoholic beverages for which the
       permit is sought is prohibited by any valid order of the commissioners court.

TEX . ALCO . BEV. CODE ANN . § 11.37 (Vernon 2007).

       The proceeding at issue here involved only the trial court’s review of the decisions

of the Board of Adjustments, and the trial court’s review is limited to the legality of the

Board of Adjustments’ determination. See Vanesko, 189 S.W.3d at 771. The Board of

Adjustments’ decision involved a building permit to create a food and beverage

establishment in an existing motel, and Sea Mist claims there was an “error in a staff

decision concerning the TABC Certificate signed by the Assistant City Secretary to the

Café on the Beach since it is contrary to the Town of South Padre Island’s zoning

ordinance.”

       We hold that there were facts upon which the Board of Adjustments could have

made its decision to allow the permit and the sale of alcohol, and that Sea Mist has not

shown that the Board’s decision is illegal. The Board of Adjustments had evidence before

it that there were more than twelve units in the Palms and that the zoning requirements

under those circumstances allowed cafes and businesses similar to cafes. It also had

before it a letter from a Town of South Padre Island official who stated that there are

premises zoned as District “B” that have historically been used as bars and restaurants.


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       Sea Mist argues that there is a town ordinance that defines a nightclub as “any

business holding a mixed beverage permit from the Texas Alcoholic Beverage

Commission,” and that the proper district to place a nightclub is District “C.” Thus, Sea

Mist claims that the café could only operate in a part of the town designated as District “C.”

However, we have searched through the record and find nothing to support this claim. Sea

Mist does not include a copy of the ordinance as part of the evidence supporting its

summary judgment motion, nor does it support its claim with documentation in the record

or references in the record to support this claim. We are unpersuaded by mere assertions.

        Sea Mist also urges that by allowing the café to serve alcoholic beverages, it has

engaged in “spot zoning.” It urges that “spot zoning” is not allowed in Texas and argues

that “allowing a night club in zone ‘B’ residential district creates an unlawful spot zone.”

The term “spot zoning,” as defined in Texas law, connotes “an unacceptable amendatory

ordinance that singles out a small tract for treatment that differs from that accorded similar

surrounding land without proof of changes in condition.” City of Pharr v. Tippit, 616 S.W.2d

173, 177 (Tex. 1981). It is regarded as preferential treatment that defeats an already

established comprehensive plan. Id.

       There was no evidence in the record before us, however, that any tract has been

singled out for treatment that differs from similar surrounding property.         In fact, as

previously discussed, the evidence showed that, historically, similar businesses zoned

District “B” had been allowed permits to sell alcoholic beverages. The trial court, acting in

a quasi-judicial capacity, did not err in denying Sea Mist’s motion for summary judgment

and in upholding the decision of the Board of Adjustments. We overrule issue one.



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       By its second issue, Sea Mist complains that the trial court erred in dismissing its

declaratory judgment action. In its pleadings, Sea Mist requested that the trial court

declare whether a café that sells mixed drinks is a nightclub and whether a café located

inside a motel located in District “B” should be open only to motel guests or the public

generally.   Sea Mist pleaded that the trial court should answer the above issues

affirmatively and declare that the use of the Palms’ property is illegal. Palms urged, by a

motion to dismiss, that the declaratory judgment was merely an attempt to subvert section

211.011 of the local government code, which provided the sole remedy for persons

challenging a board of adjustment proceeding. A declaratory judgment is appropriate when

there is a justiciable controversy about the rights and status of the parties, and a

declaration would resolve the controversy. Bonham State Bank v. Beadle, 907 S.W.2d

465, 467 (Tex. 1995).

       The issues that were presented to the Board of Adjustments, and to the trial court

by writ of certiorari, were the actions of the Board of Adjustments taken on September 5,

2006, namely the Board of Adjustments’ decision to allow the building permit to go forward

and to uphold the decision concerning the execution of a TABC form by the city secretary

certifying that alcohol could be sold at the café located in the Palms. The requested

declarations sought in Sea Mist’s declaratory judgment act were subsumed and rendered

moot by the Board of Adjustments’ ruling. It is clear that the legislature intended appeals

of Board of Adjustments’ decisions to be brought through a petition for writ of certiorari.

Lamar Corporation v. City of Longview, 270 S.W.3d 609, 614 (Tex. App.–Texarkana 2008,

no pet.). Whether a café that sells mixed drinks is a nightclub would make no difference

in light of the Board of Adjustments’ decision that alcohol had historically been served at

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premises zoned as District “B.” That issue was decided by the Board of Adjustments and

was reviewed by the trial court in the writ of certiorari. Additionally, a decision with respect

to whether a café inside a motel should be open only for the motel guests and not the

public was included within the decision made by the Board of Adjustments in interpreting

section 20-7 to allow condominiums, hotels and motels with more than twelve units to have

within the premises such businesses as cafes and other similar businesses that exist for

the convenience of the occupants of the building and is an integral part of the services of

such hotel or condominium. The trial court did not err in dismissing the declaratory

judgment action because the issues were subsumed within the Board of Adjustments’

rulings of September 5, 2006. We overrule issue two.

                                       IV. CONCLUSION

       The judgment of the trial court is affirmed.




                                                      ROSE VELA
                                                      Justice


Delivered and filed the
15th day of July, 2010.




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