DAN MORALES 

ATTORNEYCENERAL 

QlXfice of ttp Elttornep Qhneral 

&ate of ZEexae 

September 21,1992 

Honorable Ron Lewis 

Chairman 

Natural Resources Committee 

Texas House of Representatives 

P. 0. Box 2910 

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 211.006 and 211.013, and in their interrelation. 

Chapter 211 of the Local Government Code empowers municipalities to 

regulate the height, number of stories, and size of buildings 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 of buildings, other structures and land 

for business, industrial, residential, or other purposes. Local Gov’t Code 

8 211.003(a). It further empowers them to regulate the construction, reconstruction, 

alteration or razing of buildings or other structures in designated places and areas of 

historical, cultural or artistic significance. Id. 5 211.003(b). Home rule cities may 

also regulate the bulk of buildings. Id. &J 211.003(c). 

Sections 211.006 and 211.007 of the Local Government Code provide the 

procedure for the adoption of zoning regulations. They require notice and a hearing 

before the adoption of zoning regulations or district boundaries. Under section 

211.007(c), the zoning commission must provide written notice to each owner of real 

property within 200 feet of property on which a change of zoning classification is 

proposed. Section 211.006(d) outlines the procedure for protesting a zoning 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. 

p. 879 
Honorable Ron Lewis - Page 2 (M-167) 

The protest must be written and signed by the owners of at least 

20 percent of either: 

(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 200 feet from that area 

It is section 211.006(d)(2) which you have asked us to 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 of this office, Attorney General opinion JM-1014 (1989). As Attorney 

General Opinion JIM-1014 points out, section 211.006(e) of the Local Government 

Code was passed by the 69th Legislature in response to the appellate court decision 

in Smng v. City of Grand hide, 679 S.W.2d 767 (Tex. App.-Fort Worth 1984, no 

writ). The Strung court 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 tax roll. 

Since street right-of-way is not included on the tax rolls, the 

area of the streets was properly excluded. 

679 S.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 of Transportation, as an owner of real property 

p. 880 
Honorable Ron Lewis - Page 3 (EM-1671 

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]ho has the authority to sign the protest [in behalf 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 any person it chose. 

You have further asked, both with respect to the Department of 

Transportation and with respect to land owned by 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, 

“land under the control, administration, or jurisdiction 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 of section 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 may join in the protest contemplated by 

section 211.006(d)(2). The purpose of section 211.013 is to codify the principle that 

municipal xming regulations have only limited power to affect land owned by state 

or federal agencies, qf. Austin Indep. Sch. Dist. v. City of Sunwt Valley, 502 S.WJd 

670 (Ten. 1973). The section does not abrogate the rights of state or federal 

agencies as property owners to participate in zoning protests. Section 211.013 does 

‘We address here only the narrow question of notice to the Department of Trauspomion as 

ao owner of a property interest. We do not consider the requirements of notice of others who may 

lmve an inlemsl ill lbe 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 211.006 and 211.&Y/ in the same way. 

3For the sake of this question, we assume without deciding that the R.T.C is a federal agency, 

since othenvise section 211.013 would be inapplicable. 

p. 881 
Honorable Ron Lewis - Page 4 (IX-167) 

not grant any power to the zoning authorities or impose any burden on property, 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 in its right-of-way, may if it 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 signing the 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 zoning protests. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLBR 

Deputy Assistant Attorney General 

RENEAHIcKs 

Special Assistant Attorney General 

MADELEJNE B. JOHNSON 

Chair, Opinion Committee 

Prepared by James Tourtelott 

Assistant Attorney General 

p. 882