### THE ATTORNEY GENERAL OF TEXAS

February 7, 1989

Honorable George Pierce OpinionNo. JM-1014 Chairman Committee on UrbanAffairs Re: Procedures for proTexas House of Representatives testing a proposed change P. 0. Box 2910 in a zoning classification Austin, Texas 78769 (RQ-1472)

Dear RepresentativePierce:

you request our opinion concerningthe proper interpretation of sections 211.006and 211.007of the Local Government Code as they relate to protests of proposed zoning changes. Section 211.007(c) requires written notice of proposed zoning changes to be sent to "each owner, as indicatedby the most recentlyapprovedmunicipal tax roll, of realpropertywithin 200 feet of the property on which .thechange in [zoning]classification isproposed.tt Section 211.006(d)provides the following:

(d) 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-fourthsof all members of the governingbody. The protest must be written and signedby the owners of at least 20percent of either:
(1) the area of the lots or land coveredby the proposed change: or

, (2) the area *of the lots or land Jmmediatelv adioj,&lDg the area covered by the proposed change and extendina 200 feet from that area. (Emphasisadded.)

You ask whether section 211.006(d)(2)includes owners of propertywithin 200 feet of the area coveredby the proposed zoning change only if theirproperty shares a boundary

P. 5233Honorable George Pierce - Page 2 (JM-1014)

with the property covered by the proposed change.1 If it requires a common boundary, YOU also ask whether the adjacentproperty would have to extend 200 feet to be included in the protest area.

We conclude that section 211.006(d) of the Local Government Code includesan owner of propertywithin 200 feet of the area coveredby a proposed change in zoning classification,whether or not the property of the protesting landowner shares a boundarywith the area covered by the proposed change or extends a distance of 200 feet from such area.
Prior to the enactment of the Local Government Code, the substance of section 211.006(d)was contained in article lolle,V.T.C.S. Article 1Olle was enacted by the 40th Legislature in 1927. Acts 1927, 40th Leg., ch. 283, 5 5, at 424, 425. The predecessor of section 211.007(c), V.T.C.S. article lOllf,was also enacted in 1927. Id. 5 6 at 425. As originally enacted, article 1Olle provided for the submission ofwrittenprotests to proposed zoning changes by

the owners of 20 per cent or **more** either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending 200 feet therefrom, or of those directly opposite thereto extending 200 feet from the street frontageof such opposite lots

. . . . Article 1Ollf requirednotice in termsvirtually identical to section 211.007(c).

1. You ask about 81standing1@ tomake a zoning protest. It shouldbe noted that section 211.006(d)does not grant standing in the sense that itprecludespersons other than those listed in the statute from registeringtheir objections to the proposed change in zoning classification. Rather, itprovides that upon the submissionof a written protestmeeting the terms of the statute, the amendment to the zoning regulation must receivea favorable vote of three-fourthsof allmembers of the legislativebody of the municipality to become effective.

p. 5234Honorable George Pierce - Page 3 (JM-1014)

Article lolle was amended in 1971 to provide that written protests may be submittedby the owners of 20 percent of either the area covered by the proposed zoning change or "the area of the lots or land immediately adjoining the same and extending 200 feet therefrom." Acts 1971, 62d Leg., ch. 942, 5 1, at 2864. The amendment apparentlywas an attempt to simplify the language of the statute,but it isunclearwhether the legislature intended to change the meaning of the statute. This language was preserved in section 211.006(d)(2) of the Local Government Code.

A careful reading of section 211.006(d)(2)reveals that the phrase "immediatelyadjoining

. . . and extending 200 feet"describes the area fromwhich landownersare permitted to sign a written zoning protest. The phrase does not describe the lots or land eligible to be included in the protest area. Thus, the appropriate reading of section 211.006(d)(2) is that it includes owners of lots or land within the area "immediately adjoining the area covered by the proposed change and extending 200 feet from" the area coveredby the proposed change.

Our reading of this provision is supportedby,the only
case to construe the language of what is now section 211.006(d)(2). In Stronav. Citv of Grand Prairie, 679 S.W.2d 767 (Tex.App. - FortWorth 1984,no writ), the court read articles 1Olleand 1Ollf inharmony, equating the class of landownersentitled to noticeunder article 1Ollf with the class of owners specified in article 1011e:

The trial court also concludedas a matter of law that under art. 1Olle those who are entitled to sign zoningchangeprotests are the same as those entitled to noticeby art. 1011f. Article 1Ollfrequireswritten notice of all public hearings on proposed zoning changesbefore the city's zoning commission to owners 'ofrealproperty lyingwithin 200 feet of the property onwhich the change in zoning classification is proposed

. . . as the ownership appears on the last approved city tax roll.' TEX.NEV.CIV.STAT.ANN. art. 1Ollf (VernonSupp.1984). The trial court, also as a matter of law, concluded that in determining the base area (ordenominator) in which the protest area (ornumerator) is 20%, the area of streets is excluded.

p. 5235Honorable George Pierce - Page 4 (JM-1014)

We hold that both of these conclusions of law are correct, and that a readina of art8. 10 &&ent of the leaislature was to De& written **DrOteStS** Of DrODOSed ZOninc chancres pv the owrs of 'realnronertv' lvinaw1thi.h 200 feet of the Dr(2Rsirtv onwhich the zonincr ae isDrODOSed.which own- 1s determined from the last annrovedcitv tax roll

. Since street right-of-way is not included
on the tax rolls, the area of the streetswas properly excluded. (Emphasis added and citations omitted.)

679 S.W.2d at 770. The court's construction of article lolleplaces no emphasis on the conjunctive nandM in the phrase "immediatelyadjoining

. . . m extending 200' feet therefrom" and thus means that an owner of property within 200 feet of the area included in a proposed zoning change is entitled to sign a zoning protest even though his property does not share a boundary with the area covered by the proposed change or extend the entire 200 feet from the area coveredby the proposed change.

A statute is the creation of the legislature,and if an interpretationof a statuteby the courts is unacceptable to the legislature, the simple remedy is to amend the statute. Warmon v. Wustana Aviation. Inc,, 430 S.W.Zd 182 (Tex.1968). Thus,when the legislatureamends a statute, the courtspresume that the legislaturewas fully aware of the constructiongiven the statute **by** the courts at the time of the amendment. & Warthan v. Havnes, 288 S.W.2d 481, 484 (Tex. 1956). The failureof the legislatureto amend the statute to avoid a particular constructionplaced on a provision of the statute is considered significant, especiallv if the statute has been amended in other places. See. &.a%,Woss v. Gibbs, 370 S.W.2d 452 (Tex.1963); San Antonio Union Junior Colleae Dist.v. Daniel 206 S.W.Zd 995 (Tex. 1948). In such instances.the leaisla&ure8s inaction
**:----~ ~~**  **~~ ’**  indicateseither legislativeapproval oi the construction or general dissatisfaction of insufficient strength to impel legislativeaction. Woss v. Gibbs, suora.
The legislature reacted to the Strong decision by adding the following language to article 1011e: I1 In computing the percentage of land area, the area of streets and alleys shallbe included in the computation." Acts

p. 5236HonorableGeorge Pierce - Page 5 (JM-1014)

1985, 69th Deg., ch. 201, § 1, at 788, 789. The essence of this provision is now found in section 211.006(e) of the LocalGovernment Code. The amendmentdid not disturb the court'sholding concerninga property owner's eligibility to sign zoning protests, and the statute has not been subsequentlyamended to avoid that construction. We can therefore treat these events as constituting either the legislature'stacit approval of Strong in that regard or as an indication of insufficient legislativediscontent with that aspect of the case to warrant legislativeresponse. In either event, Strong remains themost recent and relevant interpretationof section 211.006(d),and for that reasonwe conclude that the provision authorizesthe submission of written protests to proposed changes in zoning classificationssignedby the owners of any property within 200 feet of the area covered **by** the change,whether or not the properties of the protesting landowners share a boundary with or extend a distance of 200 feet from the area covered by the proposed change.

Your next question concerns the language added to article 1Olle following Strong. It is prompted by the following statement in Attorney General Opinion JM-676 (1987):
[T]he legislature clearly intended article

lOlle(a) [nowsection 211.006(e)of the Local Government Code] to require that streets and alleysbe 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.

Your question is

whether a city **may** allocate one-half of the
area of any adjacent street or alley to a property eligibleto participate in a zoning protest for purposes of determining who controls the streets and alleyswith regard to such a protest.

We will assume for the purposes **of** this opinion that your question refers to property within a zoningprotest area that abuts a street or alley. See Black's Law Dictionary 11 (5thed. 1979) ("abutt means,%ter alia, to touch, join

p. 5237Honorable George Pierce - Page 6 (JM-1014)

at a border, or border on: "abutting" implies a closer proximity than lladjacent,l' b, no intervening land).

The issue in Attorney General opinion JM-676 was whether the amendment to article 1Ollecreated a distinction between (1)streets and alleys held in fee simple by protesting landowners and dedicated for use as public easements and (2)streetsand alleys owned by a city in fee simple. The concernwas that the statute excludedprivately owned streets and alleys from the computation of land area required by article 1011e. The opinion cited several authorities for the general rule that, unless otherwise declared in the conveyance, an owner of land abutting a street or alleywhich has been dedicated to the public holds the fee title to the center of the street or alley, subject to a public easement. See also 43 Tex. Jur. 3d, Biahwavs and Streets 5 116. Municipalitiesmay also acquire fee simple to streets and alleys, either through grant, purchase, or condemnation. &9 & The purpose of the amendment to article lolle,we noted, was to simplify the computationof the percentage of land area, a task made more difficult and costly as a result of the Stronq case. We therefore concluded the legislature intended no further complications by excluding privately owned streets and alleys from the computation.

Your inquiry is answeredby the languageof subsections (d)and (e)of section 211.006of the LocalGovernment Code and by Attorney General OpinionJM-676. Subsection (d) is quite clear in its requirementthat a written zoningprotest be signedby the owners of at least 20percent of either of the areas specified in the provision. Subsection (e) requires streetsand alleys to be included in the computation of the percentage of land area under subsection (d). Subsection (d)thus authorizes the owners of streets and alleys in the protest area, includingcities, to sign the zoning protest. See Geary, Davenport,and Minick,Annual Survev of Texas Law: LocalGovernment Law, 40 Sw.L.J. 727, 732-733 (1986).

Attorney General OpinionJW-676makes it clear that, as a general matter, an owner of land abutting a street or alleyholds fee title to the center of the street or alley, unless otherwise provided in the conveyance to the landowner. By includingthe area of streets and alleys in the section 211.006(d) computation,the legislature expressed its intentionnot only to simplifythe computation,but to give the owners of land supporting streets and alleys in

p. 5238Honorable George Pierce - Page 7 (JM-1014)

the protest area greater say in the rezoning process. Accordingly,we conclude that section 211.006 of the Local Government Code authorizes amunicipality to allocate the
area of a street or alley in the manner you describe only when the adjacent landownerholds fee title to the center of the street or alley and only if the allocation conforms to the demarcationof the center line of the street or alley.

SUMMARY

An owner of propertywithin 200 feet of the area coveredby a proposed change in zoning classification is entitledto sign a written zoningprotestunder section 211.006(d)of the Local Government Code, whether or not the property of the protesting landowner shares a boundarywith the area coveredby the proposed change or extends a distance of 200 feet from such area. Section 211.006authorizes a municipality to allocate one-half of the area of a street or alley to abuttingproperty i;;luf;z within the zoning protest area only
owner of the abuttingpropertyholds fee title to the center of the street or alley and if the allocation conformsto the demarcationof the center line of the street or alley.

Attorney General of Texas

MARY KELLER FirstAssistantAttorney General

IOU MCCRKARY~ ExecutiveAssistantAttorney General

JUDGE ZOLLIE STKAKLEY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby SteveAragon AssistantAttorney General

p. 5239