April 13, 1987

EonorableGibsonD. (Gib)Lewis Speaker Texas Eouse ofRepresentatives P. 0. Box 2910 Austin.Texas 78769 opinionNo. JM-676
Re: Whether a public street or alley owned in fee simple may be used in computing 20percent of land area for purposes of article 1011e.V.T.C.S.
Dear SpeakerLewis:
As Speaker of theTexas House of Representatives,you request an opinion concerning article lOlle(a). V.T.C.S., which provides in pertinentpart the following:

(a) [Zoning] regulations, restrictions, and boundaries may from time to time be amended, supplemented,changed.modified. or repealed. In case, however, of a written protest against such change. signed by the owners of 20 per cent or more either of the area of the lots or land included in suchproposed change, or of the lots or land immediately adjoining the same and extending 200 feet therefrom,such amendment shall not become effective except by the favorablevote of three-fourthsof allmembers of the legislative body of such municipality. In computing the percentage of land area, the area of streets and alleys shall be included in the cmpucation. (Emphasisadded).
V.T.C.S. art. 1011+(a). Specifically,you ask:

In determiningunder article lOlle[a]whether a protest has been signed by the owners of 20 percent or more of the area of the lots or land included in the proposed zoning change. is d protesting owner allowed to **count, coward**  the 20 percent. the land in the area of the proposed change chat the owner owns in fee simple but chat is used as a public street or alley under an easementgranted to themunicipalicy?

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Our answer is "yes." Article 1Olle sets forth the procedure for amending or changing zoning ordinancesby a city's legislature. Subsection (a) of article 1Olle provides that if "owners of 20 percent or more either of the area of the lots or land included in such proposed change, or of the lots or land immediately adjoining the same and extending 200 feet therefrom"protest in writing, a three-fourths favorable vote of the city legislature is requiredbefore any zoning change canbe effected. Notably, House Bill No. 1686 of the Sixty-ninth Legislature (hereinafter "the amendment" or "House Bill No. 1687") amended article lOlle(a)by adding the following stipulation:

In computing thepercentage of land area, the area of streets and alleys shall be included in the computation. (Emphasisadded). kts 1985. 69th Lea.. ch. 201. $1. at 789. The word "shall" is generally .construed-to be mand&ory. Green v. County Attorney of Anderson County, 592 S.W.2d 69, 73 (Tax. Civ. App. - Tyler 1979, no writ); Attorney General Opinion JM-561 (1986) at 4. In thismanner, the legislature adopted mandatory language which explicitly requires including the area of streets and alleyswhen computing thepercentage of land ownedby personswho protest a zoning change. The lrgislativehistory of the amendment reveals thatHouse Bill No. 1686 was prompted by the opinion rendered in Strong v. City of Grand Prairie, 679 S.W.Zd 767 (Tex. Civ. App. - Fort Worth 1984, no writ). In Grand Prairie, the court concluded that, when written protests are filed in response to a zoning change,

in determining the base area (or denominator) inwhich the protest area (or numerator) is 20percent, the area of streets is excluded. (Emphasisadded). Id. at 770. The legislature responded to this decision by enacting the amendment requiring the inclusion of streets and alleys in the article 1011=(a)computation. Basedupon theplainmoaning of the amendment and its legislative history. the legislature clearly intended article lOlleta) to require that streets and alleys be included in computing either the area of lots or land included in the zoning change area, or the area of lots or land adjoining the proposed change area and extending 200 feet therefrom. See Anderson v. Penix, 161 S.W.2d 455, 459 (Tex. 1942) (wordsof a stafute are thebest evidence of legislative intent);Cify of Irvingv. Dallas County Flood ControlDistrict, 377 S.W.2d 215. 219 (Tex.Civ.App. - Tyler), rev'd on other grounds, 383 S.W.2d 571 (Tex.

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1964) (co determine legislative intent "it is proper to consider the history of the subject matter involved, the end to be obtained, the mischief to be remedied and the purpose to be accomplished"). The remaining issue is whether streets and alleys privately owned in fee simple, but dedicated to the city as public easements, constitute "streets and alleys" to be included in computing land area held by protesting land ownerspursuant toarticle 1011=(a).
As a preliminar;matter, incorporatedcities or townshave statutory authority toopen.manage, andmaintain streetsand alleys. See, s. V.T.C.S. art. 1016. Typically, a street refers to a public thoroughfare in a city or town. Refugio v. Strauch, 29 S.W.2d 1041, 1043, jdmt. adopted (Tex. Coaua'nApp. 1930). A public alley is defined as generallynarrower than a street.but nonetheless governed by the sama legal principles applied to streets. Quanah Acme 6 P. Railway Co. v. Swearingen. 4 S.W.Zd 136, 139 (Tex. Civ. App. - Amarillo 1927,writ ref'd). Generally, a person owning land abutting a street or alley which has been dedicated to thepublicby plat. conveyance,or prescription holds the fee title to the center of the street or alley. FortWorth v. Southwest Magazine, 358 S.W.2d 139, 141 (Tex. Civ. App. - Fort Worth 1962,writ ref'dn.r.e.). cert.denied, 372U.S. 914 (1963);see also 22 I. Singer, 1976). Municipal Law and Practice 5681 (Texas PractG

The fee title is,however, subjekt to a public easement. See City of Mission v. Popplewell, 294 S.W.Zd 712. 715 (Tex. 1956). Because streets and alleys are frequently privately owned in this manner. it is reasonable to conclude that the legislature intended to include streets and alleys that are privately owned in fee simplebut that are dedicated to the city as public easementswithin rhe general term "streets and alleys" in section (a) of article 1Olle. See also Johnsonv. Township ofMontville. 109N.J. Super. 511. 264A.2d 75, 78 (NJ. 1970). Furthermore, testimony before the House Committee on Urban Affairs indicates chat the purpose of the requirement is that streets and alleys be included in the computation to simplify the computation. That purpose would not be served if article 1Ollewere to differentiate between streets and alleys owned by a city in fee simple and privately owned streets and alleys. See Hearing and Testimony on H.B. No. 1686, before the iiouseCoztee on Urban Affairs, 69th Leg., public hearing (March 20. 1985) (tape recording available fromHouseHearingReporter). Thus, streetsand alleysheld as public easements and privately owned in fee simple constitute "streetsand alleys" tobe included in computing the landarea heldby protesting land owners forpurposes of article 1011=(a).
SUMMARY
Pursuant to section (a) of article 10110, V.T.C.S., streets and alleys held in fee simple by

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protesting land owners and dedicated for use as public easements are **CO**be included in computing the percentage of land area ownedby theprotesters.

JIM MATTOX Attorney General ofTexas
JACX HIGHTOWER **First Assistant**  Attorney General
MARY KELLER ExecutiveAssistant **Attorney** General
JUDGE ZOLLIE STEAKLEY SpecialAssistant **Attorney** General
RICK GILPIN Chairman,Opinion Colmnittee Preparedby JeffMillstone Assistant **Attorney** General

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