DAN MORALES

ATTORNEYCENERAL 

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## &ate ofZEexae September 21,1992

Honorable Ron Lewis Chairman Natural Resources Committee Texas House ofRepresentatives P.0. Box2910 Austin Texas 78768-2910 Opinion No.DM-167 Re: Whether the State of Texas may participate in protesting zoning changes, and related questions (RQ-404)

Dear Representative Lewis:
You have asked us to interpret certain provisions of the Local Government Code regarding zoning regulations and zoning protests. You express particular interest in sections 211.006and 211.013,and in their interrelation. Chapter 211 of the Local Government Code empowers municipalities to regulate the height, number ofstories, and sizeofbuildings and other structures; the percentage of lots they may occupy; the size of yards, courts, and open spaces; population density; and the location and use ofbuildings, other structures and land for business, industrial, residential, or other purposes. Local Gov’t Code 8211.003(a). It further empowers them to regulate the construction, reconstruction, alteration or razing ofbuildings or other structures in designated places and areas of historical, cultural or artistic significance. Id. 5211.003(b). Home rule cities may alsoregulate the bulk ofbuildings. Id. &J 211.003(c). Sections 211.006 and 211.007 of the Local Government Code provide the procedure for the adoption ofzoningregulations. They require notice and a hearing before the adoption of zoning regulations or district boundaries. Under section 211.007(c),the zoning commission mustprovide written notice to each owner ofreal property within 200 feet of property on which a change of zoning classification is proposed. Section 211.006(d) outlines the procedure forprotesting azoning change:

If a proposed change to a regulation or boundary is protested in accordance with this subsection, the proposed change must receive, in order to take effect, the affirmative vote of at least three-fourths of all members of the governing body.

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The protest must be written and signed by the owners of at least 20percent ofeither:

(1) the area of the lots or land covered by the proposed change; or (2) the area of the lots or land immediately adjoining the area covered by the proposed change and eztending 200feet from that area Itis section 211.006(d)(2) whichyou have asked usto interpret. You first ask us whether “if a significant portion of the adjoining land is bordered by a highway,.

. .is that area included when computing the percentage of land area under Subsection (d)?
We believe that this question is answered by section 211.006(e), and by a prior opinion ofthis office,Attorney General opinion JM-1014 (1989). AsAttorney General Opinion JIM-1014points out, section 211.006(e) of the Local Government Code waspassed by the 69th Legislature in response to the appellate court decision inSmng v.CityofGrand hide, 679 S.W.2d767 (Tex. App.-Fort Worth 1984,no writ). The Strungcourt held that

the intent of the legislature was to permit written protests of proposed zoning changes by the owners of “real property” lying within 200 feet of the property on which the xomng change is proposed, which ownership is to be determined from the last approved city taxroll. Since street right-of-way isnot included on the tax rolls, the area ofthe streets wasproperly excluded. 679S.WL?d

at 770. The legislature directly overruled Snow with respect to streets by adopting section 211.006(e): “In computing the percentage of land area, the area of streets and alleys shall be included in the computation.” Acts 1985,69th Leg., ch. 201,s 1, at 788, 789. Attorney General Opinion JM-1014 therefore concluded that the statute “authorizes the owners of streets and alleys in the protest area, including cities, to sign the zoning protest.” Attorney General Opinion JM-1014 at 6. We believe that the Texas Department ofTransportation, as an owner of real property

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in its right-of-wayt, may be included in the owners of 20 percent of the adjohsing area required for the protest by section 211.006(d)(2) of the Local Government Code.2
Your next question is“[w]hohas the authority to signthe protest [inbehalf of the Department of Transportation]?” The decision to participate in the zoning protest would, we believe, have to be made by the Texas Transportation Commission. V.T.C.S.art. 6665. Having made that decision in accordance with law, the commission could then delegate the wholly ministerial act of signing a petition to anyperson it chose. You have further asked, both with respect to the Department of Transportation and with respect to land ownedby the Resolution Trust Corporation (RT.C.), whether the conflicts clause of the zoning statute, section 211.013 of the Local Government Code, affects the question of the department’s or the R.T.C.‘s right to be included in the aoning protest. You note that under section 211.013,

“landunder the control, administration, orjurisdiction of a state or federal agency” is exempted from the provisions of subchapter A of chapter 211, and ask whether this means that land owned by the R.T.C. or the department of Transportation is exempted from the provisions ofsection 211.006(d)(2).s
We conclude that section 211.013 does not exempt land owned by state or federal agencies from the 20 percent of the area of lots or land immediately adjohring the affected area whose owners mayjoin in the protest contemplated by section 211.006(d)(2). The purpose of section 211.013isto codify the principle that municipal xming regulations have only limited power to affect land owned by state or federal agencies, qf.AustinIndep.Sch.Dist.v. CityofSunwt Valley,502 S.WJd 670 (Ten. 1973). The section does not abrogate the rights of state or federal agencies asproperty owners to participate in zoning protests. Section 211.013does

‘We address here onlythe narrow question ofnotice to the Department ofTrauspomion as ao owner of a property interest. We do not consider the requirements of notice of others who may lmve aninlemsl illlbe property.

we ht. also been iuformed by the Department of Transportation that the department is mulblely given notice, as a property owuer, of proposed ming changes by local authorities. This wggosts that such authorities read sections 211.006and 211.&Y/ inthe same way. 3Forthe sake ofthis question, we assume without decidingthat the R.T.C is a federal agency, since othenvise section 211.013 would be inapplicable.

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not grant anypower to the zoning authorities or impose any burden onproperty, but rather protects the interests of property owners-including state and federal agencies. 

## SUMMARY

The Texas Department of Transportation, as an owner of real property inits right-of-way,may ifit so chooses be included among the owners of 20 percent of immediately adjoining property protesting a zoning change under Local Government Code section 211.006(d)(2). Any such decision must be made by the Texas Transportation Commission. The commission may delegate the purely ministerial act of signingthe petition to any person it chooses. Local Gwemment Code section 211.013 does not abrogate the rights of state or federal agencies to participate in zoningprotests.

DAN MORALES Attorney General ofTexas WILLPRYOR First Assistant Attorney General
MARY KELLBR Deputy Assistant Attorney General RENEAHIcKs Special Assistant Attorney General MADELEJNE B.JOHNSON Chair, Opinion Committee Prepared byJames Tourtelott Assistant Attorney General

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