City of Dallas v. Turtle Creek Manor, Inc.

546 S.W.2d 384, 1977 Tex. App. LEXIS 2589
CourtCourt of Appeals of Texas
DecidedJanuary 18, 1977
DocketNo. 8407
StatusPublished

This text of 546 S.W.2d 384 (City of Dallas v. Turtle Creek Manor, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Dallas v. Turtle Creek Manor, Inc., 546 S.W.2d 384, 1977 Tex. App. LEXIS 2589 (Tex. Ct. App. 1977).

Opinion

CORNELIUS, Justice.

Appellant City of Dallas brought this action to enjoin Turtle Creek Manor, Inc., appellee, from violating the City’s comprehensive zoning ordinance. The City alleged that appellee was operating an establishment for the treatment of alcoholic, narcotic or psychiatric patients at 2707 Routh Street in Dallas where such use was prohibited by the ordinance. Appellee contended that it only operated a lodging and boarding house at 2707 Routh Street, and further that the City was precluded by estoppel or [385]*385res judicata from maintaining its suit because it had issued appellee a building permit and a certificate of occupancy at that location. It was conceded by the City that the operation of a lodging and boarding house was permitted at 2707 Routh Street as a nonconforming use. Trial was to the court without a jury. Findings of fact and conclusions of law were made to the effect that (1) appellee’s use of the premises in question did not constitute the care of alcoholic, narcotic or psychiatric patients as defined by the ordinance, but did constitute use as a lodging or boarding house, and (2) as the City granted appellee a building permit and a certificate of occupancy, and no appeal to the Board of Adjustment was taken from such action, the City’s suit was barred by res judicata.

The City’s appeal presents twelve points of error which contend generally that (1) the use of the premises in question constitutes, as a matter of law, the care or treatment of alcoholic, narcotic or psychiatric patients, (2) there is no evidence or insufficient evidence to support the trial court’s finding that the use was that of a lodging or boarding house, and (3) the court erred in concluding that this action is barred by res judicata.

The zoning ordinance defines “lodging or boarding” as follows:

“Lodging or boarding: Lodging shall mean where one or more dwelling units are occupied or intended to be occupied by five or more persons who are not husband and wife, son or daughter, mother or father, sister or brother of the owner or operator. Boarding shall mean where meals are provided by the operation of a lodging house.”

The ordinance defines an establishment for the care of alcoholic, narcotic or psychiatric patients as one:

“. . . offering resident or out-patient treatment to alcoholic, narcotic or psychiatric patients.”

Before appellee decided to purchase the property in question, Mr. Salzberger, a member of appellee’s board of directors, discussed the matter with Mr. William McClintlock, the assistant director of Urban Rehabilitation of the Department of Housing and Redevelopment of the City of Dallas. Mr. McClintlock told Mr. Salzberger what would be necessary in order to secure a building permit and a certificate of occupancy as a lodging and boarding house. Building permits were obtained, the property was purchased by appellee, and some $67,000.00 worth of improvements were made. When the work was completed an occupancy record card, a prerequisite to occupancy, was issued by the City. The original application for the building permit described the use of the property as a “rooming house.” The permit issued pursuant to that application likewise specified the use as “rooming house.” A supplemental application for air conditioning, which described the use as a “halfway house,” was apparently refused, as indicated by the notation “reject-zoning” which appears on it. Another application for the air conditioning was subsequently made, and it listed the use as “boarding house.” The notation “Ok —Boarding House” appears on the bottom of that application and the permit issued in response to it also describes the use as “boarding house.” Mr. Salzberger testified that before Mr. McClintlock issued the permits, he was fully apprised of the type of operation appellee intended to conduct on the property. As no appeal was taken to the Board of Adjustment from the action of the City in issuing the permits, appellee contends, and the trial court found, that the City is barred by res judicata from enjoining appellee’s use of the property.

We do not regard the issue of res judicata to be dispositive of this case. The permits were issued to appellee for the purpose of improving and operating a rooming and boarding house. The City did not then, and does not now, dispute appellee’s right to operate a rooming and boarding house at its present location, but it contends that appellee was using the property for a different purpose not authorized by the permits and expressly prohibited by the ordinance. If that contention is correct, the City was entitled to enjoin the actual un[386]*386lawful use, and the fact that permits had been issued for another type of use would be no barrier. The decisive issue then was whether appellee was using the property as a lodging or boarding house or as an “establishment for the treatment of alcoholic, narcotic or psychiatric patients.”

The meaning of “establishment offering resident or out-patient treatment to alcoholic, narcotic or psychiatric patients” is a matter of construction of the ordinance, and is a question of law. Harris v. Laquinta-Redbird Joint Venture, 522 S.W.2d 232 (Tex.Civ.App. Texarkana 1975, writ ref’d n. r. e.); 82 Am.Jur.2d, Zoning and Planning, Sec. 157.5, p. 650. But whether a particular use comes within that meaning is a question of fact. Langbein v. Board of Zoning Appeals, 135 Conn. 575, 67 A.2d 5 (1949); Coleman v. Estes, 281 Ala. 234, 201 So.2d 391 (1967); 82 Am.Jur.2d, Zoning and Planning, Sec. 157.5, p. 650. The words used by the ordinance to describe the prohibited use are specific and unambiguous. A resort to extrinsic aids of construction is therefore unnecessary. According to both its commonly accepted meaning and its judicial interpretation, “treatment” refers to the steps taken to effect a cure of an injury or disease, and includes examination and diagnosis as well as the application of medical remedies. Goodrich v. Tinker, 437 S.W.2d 882 (Tex.Civ.App. El Paso 1969, writ ref’d n. r. e.); Black’s Law Dictionary, 4th Ed. 1957, p. 1673. “Patient” means an ill person, commonly one under the treatment or care of a physician or surgeon or in a hospital. Red v. Group Medical and Surgical Service, 298 S.W.2d 623 (Tex.Civ.App. Galveston 1957, no writ); Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957) cert. denied, 355 U.S. 882, 78 S.Ct. 148, 2 L.Ed.2d 112. A fact question is therefore involved — whether appellee is operating an establishment which takes steps to cure persons who are ill from the use of alcohol or narcotics, or from psychosis. To support its contention that appellee was operating such an establishment, appellant relied upon the following evidence: There are thirty-two (32) residents of Turtle Creek Manor. Each has formerly been a patient of a mental institution.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Red v. Group Medical and Surgical Service
298 S.W.2d 623 (Court of Appeals of Texas, 1957)
Coleman v. Estes
201 So. 2d 391 (Supreme Court of Alabama, 1967)
Harris v. LaQuinta-Redbird Joint Venture
522 S.W.2d 232 (Court of Appeals of Texas, 1975)
Goodrich v. Tinker
437 S.W.2d 882 (Court of Appeals of Texas, 1969)
Langbein v. Board of Zoning Appeals
67 A.2d 5 (Supreme Court of Connecticut, 1949)
Brown v. Moore
247 F.2d 711 (Third Circuit, 1957)

Cite This Page — Counsel Stack

Bluebook (online)
546 S.W.2d 384, 1977 Tex. App. LEXIS 2589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-dallas-v-turtle-creek-manor-inc-texapp-1977.