Poker Club Has Winning Hand

TCHDallas2, LLC v. Espinoza, a dispute about the certificate of occupancy for a poker club, turns on an issue about the standard of review for a Board of Adjustment decision about zoning. As the Fifth Court sumarized:

The verified record reflects that the BOA’s decision was based upon significant historical facts relating to governmental oversight, review, and approval. Specifically, TCH was issued a C.O. after two years of due diligence during which time TCH worked with the city attorney and the city council to ensure the planned  operations would comply with all relevant laws and local ordinances. TCH conducted its operations without making any changes for nearly fourteen months after the issuance of the C.O., and TCH was not prosecuted by the district attorney or any other agency. Nevertheless, in December 2021, the building official revoked TCH’s C.O. on the basis that TCH’s operations at the location as described in the land use statement violated Texas Penal Code section 47.04. The discussion among the members of the BOA reflected that the issue of whether TCH’s operations were legal or illegal had not been determined by a court of law, and it was not clear whether TCH’s operations came under the safe harbor provision of penal code section 47.04. In this specific context, the BOA voted unanimously to reverse the building official’s revocation of TCH’s C.O. 

Acknowledging that a question of law (the legality of the club’s operations in light of the state’s gambling laws) was presented to some degree, the Court held that the BOA was within its discretion this specific decision, such that “the trial court effectively substituted its discretion for that of the BOA in this case in which the BOA could have reached multiple decisions.” No. 05-22-01278-CV (Aug. 27, 2024) (mem. op.).