Is Texas's three-fourths vote requirement to approve a protested subdivision replat constitutional?

Plain-English summary

When a Texas landowner wants to redraw the lot lines of an existing residential subdivision (a "replat"), and the replat needs a variance and the neighbors object, state law makes the approval harder to get. Local Government Code section 212.015(c) says that a protested replat needing a variance has to win the affirmative vote of at least three-fourths of the members present of the city planning commission or city council, not just a simple majority. A state representative asked the Attorney General whether that supermajority rule is unconstitutional, suggesting it works as a taking, has no legitimate purpose, and is arbitrary.

The office disagreed. It said the three-fourths rule may make a replat harder to obtain, but it does not foreclose one. Supermajority-on-protest provisions, the office noted, are a common feature of zoning law across the states, and courts that have looked at them have upheld them. Those courts held that the rules do not hand legislative power to the protesting neighbors (the neighbors are just exercising the right to petition their government) and that they serve a legitimate purpose: giving extra protection to the property owners most affected by a change. The office quoted a New Jersey court (Farmer v. Meeker) and the Florida Supreme Court (Hope v. City of Gainesville) to that effect, and concluded section 212.015(c) is not unconstitutional on its face.

The office was careful about the limits of that answer. A facial challenge fails, but a particular planning commission decision turning down a replat might still be a taking, and whether it is depends on the facts, which an AG opinion cannot resolve. The same went for the representative's other concerns. The statute does not lack standards (chapter 212 supplies them, and they apply to replats because the statute says "plat" includes a replat); the chance that commissioners vote for personal or political reasons does not make the rule facially invalid; a landowner who wants written reasons for a denial can request them under section 212.009(e), and one who never asks waives a procedural due-process complaint; and the platting timelines in section 212.009 do apply to replats. Whether any specific city's practices actually conflict with those timelines, or delay a replat enough to be a taking, were again fact questions outside the opinion's reach.

Currency note

This opinion was issued in 1996. 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.

This opinion read Local Government Code sections 212.015, 212.014, 212.010, 212.009, and 212.001 as they stood in 1996. The platting chapter has been amended repeatedly since, and the section numbers, the notice periods, the 200-foot protest radius, the 20-percent threshold, and even the supermajority fraction may read differently today. Takings law has also moved. Read this page for the office's 1996 reasoning, and check the current Local Government Code and current takings case law before relying on any specific number or rule.

What the opinion meant at the time

For landowners and developers: The opinion meant the three-fourths rule on a protested, variance-needing replat was a steep but lawful hurdle, not an unconstitutional barrier. A developer could not get the requirement itself struck down as a facial taking or improper delegation. The opinion did, however, leave room to argue that a specific denial, on its own facts, amounted to a taking.

For cities, planning commissions, and councils: The opinion meant the supermajority rule was safe to apply. It also flagged a practical compliance point: under section 212.009(e), the body had to certify the reasons for an action on an application when the owner asked, and the platting timelines in section 212.009 applied to replats just as to original plats. A city that used "preliminary plat" workarounds to avoid letting owners file a "final" plat risked conflicting with those timelines, though whether any given practice actually did was a fact question.

For protesting neighbors: The opinion meant the protest mechanism was on solid constitutional ground. Courts treated a neighbors' protest not as the neighbors wielding legislative power, but as the people petitioning their government, with the legislature setting the heightened vote the city had to clear.

For lawyers: The office resolved only the facial constitutionality of section 212.015(c), relying on out-of-state supermajority-zoning decisions (Farmer v. Meeker; Hope v. City of Gainesville, and the cases it collected) and treating as-applied takings, arbitrariness, and timeline-conflict questions as fact-bound and outside an AG opinion. It cited Woodson Lumber Co. v. City of College Station for waiver of a procedural due-process claim when an owner does not request the certified reasons, and Greenbriar, Ltd. v. City of Alabaster on the personal-or-political-motive concern.

Common questions

What is a "replat," and when does the three-fourths rule kick in?
A replat redraws the subdivision lines on an already-platted area. Under section 212.015(c), the three-fourths supermajority applies only when the replat needs a variance and adjoining landowners file a valid written protest (signed by owners of at least 20 percent of the land immediately adjoining the area and within 200 feet of it) before the public hearing closes.

Did the Attorney General say the supermajority requirement is unconstitutional?
No. The office concluded section 212.015(c) is not unconstitutional on its face. It found the rule does not foreclose replatting, is a common feature of zoning law, does not improperly delegate power to neighbors, and serves the legitimate purpose of protecting adjoining owners.

Could a replat denial still be a taking?
Yes, potentially. The office said a particular planning commission decision disapproving a replat may constitute a taking, but whether it does turns on the facts of that case and cannot be decided in an attorney general opinion.

Does the statute give the commission any standards, or can it deny a replat for any reason?
The office said chapter 212 is not devoid of standards. Section 212.010 sets standards for approving plats, and those apply to replats because section 212.001(2) provides that "plat" includes a replat. The worry that members might vote for personal or political reasons did not make the rule facially unconstitutional, and is not unique to protested replats.

Can a landowner get written reasons for a denial?
Under section 212.009(e), the municipal authority responsible for approving plats must certify the reasons for an action on an application when the owner requests it. The office noted that an owner who neglects to make that request waives a claim that the body failed to disclose what it considered (Woodson Lumber Co. v. City of College Station).

Background and statutory framework

Local Government Code section 212.015 governs replatting of a residential subdivision in certain circumstances. The provision at issue, subsection (c), requires that a proposed replat needing a variance, if validly protested by adjoining landowners, receive the affirmative vote of at least three-fourths of the members present of the municipal planning commission or governing body, or both. A valid protest requires written instruments signed by the owners of at least 20 percent of the area of the lots or land immediately adjoining the replat area and extending 200 feet from it, but within the original subdivision, filed before the public hearing closes. Subsection (e) exempts replats of land designated for other than single- or duplex-family residential use. An earlier version of the statute had set the protest-triggered threshold at two-thirds; a Texas court of appeals had considered that predecessor in Minton v. City of Fort Worth Planning Commission, 786 S.W.2d 563 (Tex. App.-Fort Worth 1990, no writ).

The representative argued the three-fourths rule was a taking, lacked a legitimate purpose, and was arbitrary. The office rejected the facial attack. It reasoned that supermajority-on-protest provisions are common in state zoning law and that courts have upheld them as neither an improper delegation of legislative authority nor an arbitrary measure. It quoted Farmer v. Meeker, a New Jersey decision, for the view that a protest is "merely an exercise of the inherent right of the people to petition their government," not a grant of legislative power, and that the legislature may set a heightened vote where citizens' property rights are being changed. It pointed to the Florida Supreme Court's decision in Hope v. City of Gainesville, which rejected the argument that a supermajority statute was arbitrary and not reasonably related to public health, safety, or welfare, explaining that such a provision affords added protection to the owners most affected by a zoning change.

Having upheld the requirement on its face, the office repeatedly drew the line at fact questions. Whether a specific denial was a taking, whether a particular decision was unreasonable or arbitrary, whether a city's procedures conflicted with the platting timelines in section 212.009, and whether a delay amounted to a taking, were all fact-bound and beyond the purview of an AG opinion. On standards, the office relied on section 212.010 and on section 212.001(2)'s definition that "plat" includes a replat; on the concern about personal or political motives it cited Greenbriar, Ltd. v. City of Alabaster; and on the written-reasons question it relied on section 212.009(e) and on Woodson Lumber Co. v. City of College Station for the waiver point.

Citations

Statutory provisions discussed:

• Local Government Code § 212.015 (replatting; subsection (c) supermajority on protest; subsections (d), (e))
• Local Government Code § 212.014 (notice of hearing) and § 212.0142
• Local Government Code § 212.010 (standards for approving plats)
• Local Government Code § 212.009 (platting timelines; subsection (e) certified reasons on request)
• Local Government Code § 212.001(2) ("plat" includes a replat)

Cases cited:

• Farmer v. Meeker, 163 A.2d 729, 733 (N.J. Super. Ct. 1960) (protest is petition, not delegation; legislature may set a heightened vote)
• Hope v. City of Gainesville, 355 So. 2d 1172, 1174 (Fla. 1977) (supermajority statute not arbitrary; protects most-affected owners)
• Trumper v. City of Quincy, 264 N.E.2d 689 (Mass. 1970)
• Koppel v. City of Fairway, 371 P.2d 113 (Kan. 1962)
• Northwood Properties Co. v. Royal Oak City Inspector, 39 N.W.2d 25 (Mich. 1949)
• Prince George's County v. McBride, 302 A.2d 620 (Md. 1973)
• Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1579 (11th Cir. 1989) (denial for personal or political reasons and substantive due process)
• Woodson Lumber Co. v. City of College Station, 752 S.W.2d 744, 748 (Tex. App.-Houston [1st Dist.] 1988, no writ) (waiver of procedural due-process claim where owner does not request certified reasons)
• Minton v. City of Fort Worth Planning Commission, 786 S.W.2d 563, 565 (Tex. App.-Fort Worth 1990, no writ) (the two-thirds predecessor provision)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0410
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0410.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative. Several footnotes were heavily degraded in the scan; their case citations are reproduced where confirmed, and unrecoverable portions are left as gaps.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 27, 1996

The Honorable Harvey Hilderbran
Chair
Committee on Human Services
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-410

Re: Whether the supermajority requirement in Local Government Code section 212.015(c) is unconstitutional and related questions (RQ-844)

Dear Representative Hilderbran:

You ask about the constitutionality of Local Government Code section 212.015, a zoning statute which governs replatting of a subdivision or part of a subdivision in certain circumstances. It provides as follows:

(a) In addition to compliance with Section 212.0142, a replat without vacation of the preceding plat must conform to the requirements of this section if:

(1) during the preceding five years, any of the area to be replatted was limited by an interim or permanent zoning classification to residential use for not more than two residential units per lot; or

(2) any lot in the preceding plat was limited by deed restrictions to residential use for not more than two residential units per lot.

(b) Notice of the hearing required under Section 212.014 shall be given before the 15th day before the date of the hearing by:

(1) publication in an official newspaper or a newspaper of general circulation in the county in which the municipality is located; and

(2) by written notice, with a copy of Subsection (c) attached, forwarded by the municipal authority responsible for approving plats to the owners of lots that are in the original subdivision and that are within 200 feet of the lots to be replatted, as indicated on the most recently approved municipal tax roll or in the case of a subdivision within the extraterritorial jurisdiction, the most recently approved county tax roll of the property upon which the replat is requested. The written notice may be delivered by depositing the notice, properly addressed with postage prepaid, in a post office or postal depository within the boundaries of the municipality.

(c) If the proposed replat requires a variance and is protested in accordance with this subsection, the proposed replat must receive, in order to be approved, the affirmative vote of at least three-fourths of the members present of the municipal planning commission or governing body, or both.[1] For a legal protest, written instruments signed by the owners of at least 20 percent of the area of the lots or land immediately adjoining the area covered by the proposed replat and extending 200 feet from that area, but within the original subdivision, must be filed with the municipal planning commission or governing body, or both, prior to the close of the public hearing.

(d) In computing the percentage of land area under Subsection (c), the area of streets and alleys shall be included.

(e) Compliance with Subsections (c) and (d) is not required for approval of a replat of part of a preceding plat if the area to be replatted was designated or reserved for other than single or duplex family residential use by notation on the last legally recorded plat or in the legally recorded restrictions applicable to the plat.

Local Gov't Code § 212.015 (footnotes added) (emphasis added). In particular, you ask about the constitutionality of the requirement in subsection (c) that a proposed replat requiring a variance that is protested by adjoining landowners must be approved by the affirmative vote of at least three-fourths of the members present of the municipal planning commission or governing body.

Your letter suggests that section 212.015(c) constitutes a taking because "[t]he hurdle a landowner must overcome in a case where neighbors protest -- the three-fourths planning commission vote approval requirement -- is a high one" that precludes many landowners from developing their property. It also suggests that there is no legitimate purpose for the three-fourths approval requirement and that the requirement is arbitrary and not reasonably related to the health, safety, or welfare of the citizens of Texas. We disagree.

First, while the three-fourths approval requirement may make it more difficult for a landowner to obtain a replat, it does not foreclose the possibility of a replat. Furthermore, provisions requiring a supermajority in the event of adjoining landowners' protest to zoning changes are a common feature of state zoning laws[3] and courts have concluded that such provisions are constitutional. Specifically, courts have held that these provisions do not impermissibly delegate legislative authority and that they serve a legitimate purpose -- protection of the interests of adjoining landowners. In response to the contention that a statute with a similar supermajority requirement violated the constitution by improperly delegating legislative authority, denying equal protection of the laws, and infringing upon the people's right to elect legislators, one oft-quoted court stated,

The[se] constitutional attacks are founded in a misconception of the nature of the protestants' power. Rather than being legislative, it is merely an exercise of the inherent right of the people to petition their government . . . .

The statute does not prevent the governing body from amending its ordinance. It merely requires a percentage of vote greater than the usual majority where a proper protest has been filed. That the municipality should exercise extra diligence when it is making important changes in the property rights of citizens who object is obvious, and the Legislature has rightly exercised its discretion in predetermining the precise degree of extra diligence those citizens will be guaranteed. This is in conformity with recognized legislative power.

Farmer v. Meeker, 163 A.2d 729, 733 (N.J. Super. Ct. 1960) (citations omitted). Relying on this and other holdings, the Supreme Court of Florida specifically rejected the contention that a supermajority statute was arbitrary and unreasonable and not reasonably related to public health, safety, or welfare. See Hope v. City of Gainesville, 355 So. 2d 1172, 1174 (Fla. 1977) ("It is clear that the purpose of a provision requiring a greater than [usual] vote for a change of the zoning classification upon the filing of protests is to [afford] some measure of added protection against unwanted or ill-considered change upon those property owners who would be most affected by it.") (citing Farmer v. Meeker, 163 A.2d 729).[6]

For the reasons stated in these cases, we conclude that the section 212.015(c) supermajority requirement is not unconstitutional on its face. Of course, a particular planning commission decision disapproving a replat pursuant to section 212.015(c) may constitute a taking. The determination whether a particular planning commission decision disapproving a replat constitutes a taking involves questions of fact and is therefore beyond the purview of an attorney general opinion.

You ask whether section 212.015(c) lacks sufficient standards to guide the planning commission in voting on a proposed replat. Your letter suggests that planning commission members might decide to deny a proposed replat for personal or political reasons. We do not believe that this possibility makes the section 212.015(c) supermajority requirement unconstitutional on its face. First, this possibility is not unique to protested replat proposals, and could arise in the context of a platting or unprotested replatting decision. Second, chapter 212 is not devoid of standards. Local Government Code section 212.010 sets forth standards for approving plats. These standards apply equally to approvals of proposed replats. See Local Gov't Code § 212.001(2) ("'Plat' includes a replat."). Of course, a particular decision to deny a protested replat proposal may be unreasonable or arbitrary, but the determination whether a particular decision is unreasonable or arbitrary involves questions of fact and is therefore beyond the purview of an attorney general opinion.[7]

In response to your query whether a planning commission should be required to provide a written final determination outlining the specific reasons for the denial of a protested replat application, we note that section 212.009(e), see infra note 8, requires the municipal authority responsible for approving plats to certify the reasons for an action taken on an application on the request of the owner. A landowner who neglects to make such a request waives any claim that he was denied procedural due process because the decision-making body failed to disclose the information it considered in making its decision. Woodson Lumber Co. v. City of College Station, 752 S.W.2d 744, 748 (Tex. App.--Houston [1st Dist.] 1988, no writ).

Finally, you also ask whether procedures adopted by certain municipalities conflict with the timelines for platting set forth in section 212.009 of the Local Government Code.[8] Your letter states that "[g]overning bodies are skirting this requirement by [not allowing] property owners to file the replat. Their internal processes only permit landowners to [apply] to file by only allowing the use of a 'preliminary' plat, while not allowing the applicant to file a 'final' plat." (Emphasis in original.) We agree that the timelines set forth in section 212.009 apply to proposed replats. See Local Gov't Code § 212.001(2) ("'Plat' includes a replat.").[9] The determination whether any specific municipal procedures conflict with section 212.009 would require the resolution of factual questions, as would the determination whether a particular municipality's practices have caused a delay in acting upon a proposed replat that amounts to a taking. Neither issue can be definitively resolved in an attorney general opinion.[10]

                            SUMMARY

The supermajority requirement in Local Government Code section 212.015(c) is not unconstitutional on its face.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes (best-effort; degraded in the scan):

[2] The statutory predecessor to section 212.015 provided that if adjoining landowners protested, a proposed replat had to receive a two-thirds vote for approval. Act of April 13, 1981, 67th Leg., R.S., ch. 67, 1981 Tex. Gen. Laws 149, 150. A state appellate court considered that provision in Minton v. City of Fort Worth Planning Commission, 786 S.W.2d 563, 565 (Tex. App.--Fort Worth 1990, no writ).

[3] See treatises collecting state supermajority-on-protest zoning provisions, including Eugene McQuillin, The Law of Municipal Corporations §§ 25.244, .245, .248 (3d ed. 1986), and 101 C.J.S. Zoning §§ 114, 122 (1958). (Remaining treatise reference not legible in the scan.)

[4] See Hope v. City of Gainesville, 355 So. 2d 1172, 1173 (Fla. 1977); Trumper v. City of Quincy, 264 N.E.2d 689, 690 (Mass. 1970); [case name not legible], 182 N.E.2d 142, 146 (Ill. 1962); Koppel v. City of Fairway, 371 P.2d 113, 115-16 (Kan. 1962); Northwood Properties Co. v. Royal Oak City Inspector, 39 N.W.2d 25, 27 (Mich. 1949); Farmer v. Meeker, 163 A.2d 729, 733 (N.J. Super. Ct. 1960); see also Prince George's County v. McBride, 302 A.2d 620, 623-24 (Md. 1973).

[5] See, e.g., Trumper v. City of Quincy, 264 N.E.2d at 690; [case name not legible], 182 N.E.2d at 146.

[6] See also Hope v. City of Gainesville, 355 So. 2d at 1173-74; Trumper v. City of Quincy, 264 N.E.2d at 690-91; Farmer v. Meeker, 163 A.2d at 733 (supermajority provisions held not to violate Equal Protection).

[7] A refusal to rezone that would otherwise constitute arbitrary action may, when motivated by popular pressure in denying a proposed zoning change, become a denial of substantive due process. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1579 (11th Cir. 1989) (citing cases).

[8] Section 212.009 provides in pertinent part [statute text reproduced in the opinion's footnote; not fully legible in the scan].

[9] "'Plat' includes a replat." Local Gov't Code § 212.001(2).

(Footnotes [1] and [10], and portions of the footnotes above, were not legible in the scanned source; the linked PDF is authoritative.)