    c




                                                The Attorney       General of ,Texas
                                                             December 30, 1983
    JIM MATTOX
    Attorney General


    Supreme      Court Building               Honorable Wilhelmina Delco           Opinion No. JM-117
    P. 0. BOX 12546                           Chairman
    Austin,    TX. 76711. 2546                Committee on Higher Education        RS: Whether chapter 764 of the
    5121475-2501
                                              Texas House of Representatives       Sixty-eighth Legislature exempts
    Telex    9101674-1367
    Telecopier     512/475-0266
                                              P. 0. Box 2910                       buildings, structures, and land
                                              Austin, Texas   78769                under the control of a state
                                                                                   agency from zoning by cities
    714 Jackson,  Suite 700
    Dallas, TX. 75202.4506
                                              Dear Representative Delco:
    2141742-6944

                                                   You ask our opinion aa to whether all buildings, structures, and
    4624 Alberta         Ave., Suite    160   land under the control of federal and state agencies are exempt from
    El Paso, TX.         79905-2793           municipal zoning or whether only places and areas of architectural
    9151533.3464
                                              significance are so exempt. We do not believe that the exemption in
                                              section 2 of chapter 764 of the Sixty-eighth Legislature is limited to
P
        #Jl Texas.      Suite   700           only places and areas of architectural significance.
    Houston,     TX.      77002.3111
    7131223-5666                                   The building and zoning ordinances of cities are an exercise of
                                              police power delegated to cities by the state for protection of
    606 Broadway,          Suite 312
                                              health, safety, comfort, and welfare of the public. Cities possess no
    Lubbock,    TX.       79401.3479
                                              inherent Dower of aoninn and are limited to the Dower conferred on
    &M/747-5236                               them by statute. Fort Wirth & D.C. Railway Co. v.'Ammons, 215 S.W.2d
                                              407, 409 (Tex. Civ. App. - Amarillo 1948, writ ref'd n.r.e.).
    4309 N. Tenth, Suite 6
    McAllen,     TX. 76501-1665
                                                   Articles lOlla through lOllj, V.T.C.S., enacted by chapter 283,
    5121662.4547                              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
    200 Main Plaza, Suite 400
                                              Bellaire V. Lamkin, 317 S.W.2d 43, 44 (Tex. 1958); Porter
    San Antonio.  TX. 76205-2797
    5121225-4191
                                              Southwestern PubllFService Co., 489 S.W.2d 361, 364 (Tex. CG.- 4pp. -
                                              Amarillo 1972, writ ref'd n.r.e.); Fort Worth & D.C. Railway Co. v.
                                              Ammons. 215 S.W.2d 407. 4101 (Tex. Civ. App. - Amarillo 1948, writ
    An Equal         Opportunity/             ref'd h.r.e.); 63 Tex. -Jur. 2d Zoning, Q5 at 744; -cf. V.T.C.S. art.
    Affirmative        Action     Employer    1175. subdivision 26.




                                                   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 instead was enacted as non-amendatory law and codified by Vernons
                                              as Articles lOlla-1011j. Cf. Wooldrige V. Folsom. 564 S.W.2d 471
                                              (Tex. Civ. App. - Dallas 1978,no writ).

                                                                      p. 494
                                                                         \
Honorable Wilhelmina Delco - Page 2    (JM-117)


                                                                             ?


     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 designated places 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-enacted by chapter 764 IS
the addition of places and areas of architectural significance to the
enumerated places     and   areas where    construction, alteration,
reconstruction, or razing of buildings may 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
consistent with 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 enacted with knowledge of
existing common law and statutes. Railroad Commission of Texas V.
Miller, 434 S.W.2d 670, 672 (Tex. 1968); State v. 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
jurisdictions hold that a state agency is exempt from all local zoning
ordinances. In exercising the police powers delegated to it by zoning
statutes, a city exercises the powers of the state government within




                              p. 495
,

    Konorable Wilhelmina Delco - 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 located within a city, unless the
    statutes clearly show that the legislature intended to waive state
    immunity from local regulation. See Port Arthur Independent School
    District v. City of Groves, 376 S.%d    330, 332 (Tex. 1964); Comment,
    The Applicability of Zoning Ordinances to Government Land Use, 39 Tex.
    L. Rev. 316, 325 (1961). Cf. Attorney General Opinions MW-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 (3rd ed. 1976 rev.), 525.15. But cf. Austin
    Independent School District v. City of Sunset Valley, 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
    constitution and general laws of this state. Article XI, section 5,
    of the Texas Constitution, and article 1165, V.T.C.S., provide that no
    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'd w.o.m.). Since the Texas
    Constitution,prohibits home rule city regulation which conflicts with
    programs and activities of the state and its agencies that are
    undertaken under constitutional or statutory authority, a state agency
    delegated by law the responsibility for regulation and control of
    state property is not subject to the police power of such a city. See
    City of Dallas v. Southwest Airlines Co., 494 F.2d 773, 777 (5th Cir.
    1974); Beverly v. 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 ;. City of Chester, 144 F.2d 415, 420
    (3rd Clr. 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
    "provisions of this Act" in section 2 are intended to apply to chapter
    283 of the Fortieth Legislature (codified as article lOlla-1011j) or
    to chapter 764.   Either way, section 2 is law, and we believe it




                                  p. 496
Honorable Wilhelmina Delco - Page 4    (JM-117)




cannot apply to less than the re-enactment of article lOlla by 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 zoning power 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
                                       Attorney General of Texas          ?


TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin. Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood



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