                         QlXfice of ttp Elttornep Qhneral
                                   &ate of ZEexae
DAN MORALES                           September 21,1992
 ATTORNEYCENERAL


     Honorable Ron Lewis                         Opinion No. DM-167
     Chairman
     Natural Resources Committee                 Re: Whether the State of Texas may
     Texas House of Representatives              participate in protesting zoning changes,
     P. 0. Box 2910                              and related questions (RQ-404)
     Austin Texas 78768-2910

     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
     8 211.003(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. 5 211.003(b). Home rule cities may
     also regulate the bulk of buildings. Id. &J 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.



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Honorable Ron Lewis - Page 2           (M-167)




         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 eztending 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 JIM-1014points out, section 211.006(e) of the Local Government
Code was passed by the 69th Legislature in response to the appellate court decision
in Smng v. City of Grand hide, 679 S.W.2d 767 (Tex. App.-Fort Worth 1984, no
writ). The Strung 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 xomng 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.WL?dat 770.

        The legislature directly overruled Snow 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,s 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




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Honorable Ron Lewis - Page 3                       (EM-1671




in its right-of-wayt, may be included in the owners of 20 percent of the adjohsing
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
(RT.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 aoning 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).s

       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
adjohring 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 xming regulations have only limited power to affect land owned by state
or federal agencies, qf. Austin Indep. Sch. Dist. v. City of Sunwt Valley,502 S.WJd
670 (Ten. 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

         ‘We address here only the narrow question of notice to the Department of Trauspomion as
ao owner of a property interest. We do not consider the requirements of notice of others who may
lmve an inlemsl ill lbe property.

        we ht. also been iuformed by the Department of Transportation that the department is
mulblely given notice, as a property owuer, of proposed ming changes by local authorities. This
wggosts that such authorities read sections 211.006 and 211.&Y/in the same way.

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




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Honorable Ron Lewis - Page 4           (IX-167)




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 Gwemment 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 KELLBR
Deputy Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADELEJNE B. JOHNSON
Chair, Opinion Committee

Prepared by James Tourtelott
Assistant Attorney General



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