Can a state agency like TxDOT join a protest against a city zoning change?

Plain-English summary

Texas cities zone land, but when a city proposes to change the zoning, the affected neighbors get a powerful tool: a formal protest. If owners of at least 20 percent of the land covered by the change, or of the land immediately next to it (out to 200 feet), sign a written protest, the city council can adopt the change only by a three-fourths supermajority instead of a simple majority. A state representative asked whether the State of Texas itself can be one of those protesting owners, who signs for the state's transportation agency, and whether a special exemption for government-owned land cuts the state out of the protest count.

On the first question, the Attorney General concluded that the Texas Department of Transportation can be counted. The department owns real property in its highway rights-of-way, and the protest statute counts owners of adjoining land. The opinion noted that the Legislature had already settled a related point: after a court (in Strong v. City of Grand Prairie) held that street right-of-way was excluded from the protest-area calculation because streets are not on the tax rolls, the Legislature added section 211.006(e), which directs that the area of streets and alleys be included. A prior opinion (JM-1014) read that to let owners of streets and alleys, including governmental owners, sign zoning protests. The department, as a right-of-way owner, fits the same logic.

On who signs, the Attorney General concluded the decision to join a protest must be made by the Texas Transportation Commission, the body that governs the department. Once the commission decides to participate, it can delegate the purely ministerial act of signing the protest petition to anyone it chooses.

On the exemption question, the Attorney General concluded that section 211.013 does not strip state or federal agencies of the right to protest. That section exempts land controlled by a state or federal agency from the city zoning provisions of subchapter A; its purpose is to codify the principle that municipal zoning has only limited power over land owned by state or federal agencies. It protects those agencies as property owners; it does not take away their rights. So the exemption does not remove agency-owned land from the 20 percent of adjoining land whose owners can join a protest. The opinion applied the same reasoning to land owned by the Resolution Trust Corporation, assuming (without deciding) that the RTC is a federal agency.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The zoning-protest provisions of chapter 211 of the Local Government Code have been amended since 1992, the State Department of Highways and Public Transportation was reorganized as the Texas Department of Transportation and its enabling statute (former V.T.C.S. article 6665) recodified into the Transportation Code, and the Resolution Trust Corporation has since been dissolved, so confirm the current statutes and entities before relying on anything described here.

Background and statutory framework

Chapter 211 of the Local Government Code empowers municipalities to regulate the height, number of stories, and size of buildings; the percentage of lots they may occupy; the size of yards, courts, and open spaces; population density; and the location and use of buildings and land. Local Gov't Code § 211.003(a). It further empowers regulation of construction in places of historical, cultural, or artistic significance, id. § 211.003(b), and home-rule cities may regulate the bulk of buildings, id. § 211.003(c). Sections 211.006 and 211.007 set the procedure for adopting zoning regulations, requiring notice and a hearing; under section 211.007(c), the zoning commission must give 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) provides the protest procedure: if a proposed change is protested in accordance with the subsection, it must receive the affirmative vote of at least three-fourths of all members of the governing body to take effect. 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 extending 200 feet from that area.

The requester asked whether adjoining land bordered by a highway is included in computing the percentage under subsection (d). The Attorney General answered through section 211.006(e) and Attorney General Opinion JM-1014 (1989). Section 211.006(e) was passed by the 69th Legislature in response to Strong v. City of Grand Prairie, 679 S.W.2d 767 (Tex. App.—Fort Worth 1984, no writ). The Strong court held that the Legislature intended to permit written protests by owners of "real property" within 200 feet of the property where a change is proposed, with ownership determined from the last approved city tax roll, and that because street right-of-way is not on the tax rolls, the area of the streets was properly excluded. 679 S.W.2d at 770. The Legislature directly overruled Strong 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, § 1, at 788-89. Attorney General Opinion JM-1014 concluded the statute authorizes the owners of streets and alleys in the protest area, including cities, to sign the zoning protest. The Attorney General concluded the Texas Department of Transportation, as an owner of real property in its right-of-way, may be included among the owners of 20 percent of the adjoining area required for the protest under section 211.006(d)(2).

On who signs for the department, the Attorney General concluded the decision to participate must be made by the Texas Transportation Commission. V.T.C.S. art. 6665. Having made that decision in accordance with law, the commission could delegate the wholly ministerial act of signing the petition to any person it chose.

On section 211.013, the requester noted that "land under the control, administration, or jurisdiction of a state or federal agency" is exempted from subchapter A of chapter 211, and asked whether that exempts land owned by the Department of Transportation or the Resolution Trust Corporation from section 211.006(d)(2). The Attorney General concluded section 211.013 does not exempt state- or federal-agency land from the 20 percent of immediately adjoining land whose owners may join a protest. The purpose of section 211.013 is to codify the principle that municipal zoning regulations have only limited power to affect land owned by state or federal agencies, cf. Austin Independent School District v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 1973), and the section protects the interests of property owners, including state and federal agencies, rather than granting power to zoning authorities or imposing burdens on property. It does not abrogate the rights of state or federal agencies, as property owners, to participate in zoning protests.

Common questions

Can the Texas Department of Transportation count toward a zoning protest?
Yes. The opinion concluded TxDOT, as an owner of real property in its right-of-way, may be counted among the owners of 20 percent of the immediately adjoining land who protest a zoning change under section 211.006(d)(2).

Why do streets and rights-of-way count now?
Because the Legislature added section 211.006(e) after the Strong decision had excluded street right-of-way from the protest calculation. Section 211.006(e) directs that the area of streets and alleys be included, and a prior opinion read that to let street and alley owners, including governments, sign protests.

Who decides whether the department joins a protest?
The Texas Transportation Commission makes that decision. Once it decides, it can delegate the ministerial act of signing the protest petition to any person it chooses.

Does the exemption for state and federal land keep agencies out of protests?
No. Section 211.013 exempts state- and federal-agency land from city zoning and protects those agencies as property owners. The opinion concluded it does not take away their right to participate in zoning protests as owners of adjoining land.

Citations

• Local Government Code §§ 211.003, 211.006, 211.007, 211.013
• V.T.C.S. art. 6665
• Attorney General Opinion JM-1014 (1989)
• Strong v. City of Grand Prairie, 679 S.W.2d 767 (Tex. App.—Fort Worth 1984, no writ)
• Austin Independent School District v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 1973)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0167
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0167.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 21, 1992

Honorable Ron Lewis
Chairman
Natural Resources Committee
Texas House of Representatives
P. O. 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 § 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. § 211.003(b). Home rule cities may also regulate the bulk of buildings. Id. § 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. 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 extending 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 JM-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 Strong v. City of Grand Prairie, 679 S.W.2d 767 (Tex. App.—Fort Worth 1984, no writ). The Strong 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 zoning 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.W.2d at 770.

The legislature directly overruled Strong 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, § 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 in its right-of-way,[1] may be included in the owners of 20 percent of the adjoining 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 (R.T.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 zoning 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).[3]

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 adjoining 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 zoning regulations have only limited power to affect land owned by state or federal agencies, cf. Austin Independent School District v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 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 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 Government 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 KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by James Tourtelott
Assistant Attorney General

[1] We address here only the narrow question of notice to the Department of Transportation as an owner of a property interest. We do not consider the requirements of notice of others who may have an interest in the property.

[2] We have also been informed by the Department of Transportation that the department is routinely given notice, as a property owner, of proposed zoning changes by local authorities. This suggests that such authorities read sections 211.006 and 211.007 in the same way.

[3] For the sake of this question, we assume without deciding that the R.T.C. is a federal agency, since otherwise section 211.013 would be inapplicable.