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JIM MATTOX Attorney General

Supreme Court Building P. 0. BOX 12546 Austin, TX. 76711. 2546 5121475-2501 Telex 9101674-1367 Telecopier 512/475-0266

714 Jackson, Suite 700 Dallas, TX. 75202.4506 2141742-6944

4624 Alberta Ave., Suite 160 El Paso, TX. 79905-2793 9151533.3464

P #Jl Texas. Suite 700 Houston, TX. 77002.3111 7131223-5666

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200 Main Plaza, Suite 400 San Antonio. TX. 76205-2797 5121225-4191

An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of,Texas

December 30, 1983

HonorableWilhelminaDelco Chairman Committeeon Higher Education TexasHouse of Representatives P. 0. Box 2910 Austin, Texas 78769 OpinionNo. JM-117

RS: Whether chapter 764 of the Sixty-eighthLegislatureexempts buildings, structures, and land under the control of a state agency from zoningby cities

Dear RepresentativeDelco:

You ask our opinion aa to whether all buildings, structures,and land under the control of federal and state agencies are exempt from municipal zoning or whether only places and areas of architectural significanceare so exempt. We do not believe that the exemption in section 2 of chapter 764 of the Sixty-eighthLegislature is limited to onlyplaces and areas of architecturalsignificance.

The building and zoning ordinances of cities are an exercise of police power delegated to cities by the state for protection of health, safety, comfort,andwelfare of thepublic. Citiespossess no inherent Dower of aoninn and are limited to the Dower conferred on them by statute. Fort Wirth & D.C. Railway Co. v.'Ammons, 215 S.W.2d 407, 409 (Tex.Civ.App. - Amarillo 1948,writ ref'dn.r.e.).
Articles lOlla through lOllj,V.T.C.S., enacted by chapter 283, Acts of the Fortieth Legislature in 1927, constitute the general zoning enabling act of this state and authorize build#ng and zoning ordinances by all cities, including home rule cities. See city of Bellaire V. Lamkin, 317 S.W.2d 43, 44 (Tex. 1958); Porter SouthwesternPubll 4pp.- Amarillo 1972, writ re Ammons. 215 S.W.2d 407. 410 FService Co., 489 S.W.2d 361, 364 (Tex.CG.- f'd n.r.e.); Fort Worth & D.C. Railway Co. v. 1 (Tex. Civ. App. ref'd h.r.e.); 63 Tex. -Jur.2d Zoning, - Amarillo 1948, writ Q5 at 744; cf. V.T.C.S. art.

- 1175. subdivision26.

1. Chapter 283, Acts of the 40th Legislature, 1927, is not a part of chapter 4, Title 28, Revised Civil Statutes of Texas, 1925, but insteadwas enacted as non-amendatory law and codifiedby Vernons as Articles lOlla-1011j. Cf. Wooldrige V. Folsom. 564 S.W.2d 471 (Tex.Civ.App. - Dallas 1978,no writ).

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?

Section 1 of chapter 764 of the Sixty-eighth Legislature, re-enacted and amended section 1 of chapter 283, codified as article lOlla,to read as follows:

Sec. 1. For the purpose of promoting health, safety, morals, and for the protection and preservation of places and areas of historical, cultural, or architectural importance and significance, or the general welfare of the community, the legislative body of cities and incorporated villages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings, and other structures, the percentage of lot that may be occupied, the size of the yard, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purpose; and, in the case of designatedplaces and
areas of historic, cultural, or architectural importance and significance, to regulate and restrict the construction, alteration, reconstruction, or razing of buildings and other structures.

The only change to article lOlla as re-enactedby chapter 764 IS the addition of places and areas of architectural significanceto the enumerated places and areas where construction, alteration, reconstruction,or razing of buildingsmay be regulated.
Section 2 of chapter 764 provides that the "provisions of this Act shall not apply to buildings, structures, or land under the control, administration, or jurisdiction of any Federal or State Agency."

It is fundamental that construction of a statute must be consistentwith legislative intent, and a statute's language is the best evidence of that intent. Also, in determining legislative intent, it is presumed that legislation is enactedwith knowledge of existing common law and statutes. Railroad Commission of Texas V. Miller, 434 S.W.2d 670, 672 (Tex. 1968); Statev. Anderson, 26 S.W.2d 174, 178 (Tex. 1930); Sabine Pilots Association v. Lykes Brothers Steamship,Inc., 346 S.W.2d 166, 169 (Tex.Civ.App. - Austin 1961,no writ).

We believe that **a majority**  of decisions in this and other jurisdictionshold that a stateagency is exempt from all local zoning ordinances. In exercisingthepolicepowers delegatedto itby zoning statutes, a city exercises the powers of the state governmentwithin ?

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KonorableWilhelminaDelco - Page 3 (JM-117)

the city. A legislative grant of police power to a city is not considered a surrender of the legislature's right to regulate **the** state's own property which may be locatedwithin a city, unless the statutes clearly show that the legislature intended to waive state immunity from local regulation. See Port Arthur Independent School Districtv. City of Groves, 376 S.%d 330, 332 (Tex. 1964); Comment, The Applicabilityof ZoningOrdinances to GovernmentLand Use, 39 Tex. L. Rev. 316, 325 (1961). Cf. AttorneyGeneralOpinionsMW-508 (1982); M-182 (1968);C-690 (1966);-301 (1964);V-977 (1949). See generally 2 Anderson, American Law of Zoning (2nd ed.), 912.06; 8 McQuillin, Municipal Corporations 37 (3rded. 1976 rev.), 525.15. But cf.Austin IndependentSchoolDistrict v. City of SunsetValley, 502 S.W.2d 670, 672 (Tex. 1973).
Further, it is a well recognized principle of Texas law that charters and ordinances of home rule cities must conform to the constitutionand general laws of this state. Article XI, section 5, of the Texas Constitution,and article 1165,V.T.C.S.,provide thatno charter or ordinance of such cities may contain any provision inconsistent with the constitution and general laws enacted by **the** legislature. McCutcheon v. Wozencraft, 294 S.W. 1105 (Tex. 1927); City of Beaumont v. Gulf States Utilities Co., 163 S.W.Zd 426, 429 (Tex.Civ. App. - Beaumont 1942,writ ref'dw.o.m.). Since the Texas Constitution,prohibitshome rule city regulationwhich conflictswith programs and activities of the state and its agencies that are undertakenunder constitutionalor statutoryauthority,a state agency delegated by law the responsibility for regulation and control of stateproperty is not subject to thepolicepower of such a city. See City of Dallas v. SouthwestAirlines Co., 494 F.2d 773, 777 (5thCir. 1974); Beverlyv. City of Dallas, 292 S.W.2d 172, 176 (Tex.Civ.App.

- El Paso 1956, writ ref'd n.r.e.): Attorney General Opinions M-182 (1968);C-690 (i966);V-977 (1949).

The doctrine of federal supremacy generally immunizes federal land from local regulations. Under clause 2 of article VI, of the United States Constitution, a city ordinance, even if based on the valid oolice oowers of the state. must vield when it is in conflict **with** federal law. United States ;. Cityof Chester, 144 F.2d 415, 420 (3rdClr. 1944);Town of Groton v. Laird, 353 F.Supp. 344, 350 (Conn. 1972). See generally Ellickson 8 Tarlock, Land Use Controls, ch. 9, p. 905 (1981).
Section 2 of chapter 764 does not amend chapter 283 of the Fortieth Legislature. although the language submitted to the legislature is underlined as if it were intended to be new language added to existing law. There is a question whether the words "provisionsof thisAct" in section 2 are intended to apply to chapter 283 of the Fortieth Legislature (codifiedas article lOlla-1011j)or to chapter 764. Either way, section 2 is law, and we believe it

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cannot apply to less than the re-enactmentof article lOllaby chapter 764, which is a re-enactment of the grant of zoning power to the cities.
Accordingly, we conclude that the plain language of section 2 incorporates into statutory law the fact that the zoningpower of the cities does not apply to buildings, structures, or land under the control, administration, or jurisdiction of any federal or state agency.

SUMMARY

Chapter 764 of the Sixty-eighth Legislature exempts all buildings, structures,and land under the control of federal or state agencies from municipal zoning. I

JIM MATTOX I AttorneyGeneral of Texas

TOM GREEN FirstAssistantAttorneyGeneral

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral
Preparedby Nancy Sutton AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE
Rick Gilpin. Chairman Jon Bible David Brooks Colin Carl SusanGarrison Jim Moellinger Nancy Sutton BruceYoungblood ?

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