                              July   7, 1989




Honorable  John F. Ferry                Opinion   No.   JM-1069
County Attorney
Hopkins County Courthouse               Re: Composition    of  municipal
Sulphur Springs, Texas    75482         zoning   board    of  adjustment
                                        (RQ-1626)

Dear   Mr.    Perry:

      You have asked    whether the   governing   body   of a   home
rule city,   which has    adopted a comprehensive      zoning   plan
pursuant  to the   enabling statutes now     codified   in   chapter
211 of the Local Government      Code, may, by local     ordinance,
designate  itself to act as a zoning board of adjustment.

      It has been     suggested   that such    an arrangement     would
violate article II,       section 1, of    the Texas    Constitution,
the "separation    of powers"     provision,   but we conclude     that
it is unnecessary    to reach the constitutional       question.    The
statute    authorizing     cities   to   create   zoning    boards    of
adjustment   itself prevents the governing       body of a city from
acting as the zoning board of adjustment,         in our opinion.

      The power of cities to enact comprehensive   zoning plans
is circumscribed.     See Mixon,  Texas Municipal  Zoninq  Law,
5 1.09 at l-21    (issue 3-1988).   In Bolton   v. Sparks,  362
S.W.2d 946 (Tex. 1962), the Texas Supreme Court said:

                The    courts    of    this    State  have    held
             ordinances     and     amendments    to   ordinances
             invalid     where    the      express,     mandatory
             provisions    of   our   zoning statute    have    not
             been complied      with. . . . Municipal       ordin-
             ances must conform to the limitations         imposed
             by the superior statutes,       and only where     the
             ordinance    is consistent     with them, and    each
             of them, will it be enforced.

362 S.W.2d   at 950.    When   the statutes    conferring  zoning
authority  upon  cities   direct that    action   be taken  in    a
certain way, it may    be performed  in   no other manner.     See
Smart v. Lloyd, 370 S.W.2d     245 (Tex. Civ. App. - Texarkana




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1963, no   writ).    And   the legislature      may   restrict    such
actions as it sees    fit.   See Coffee      Citv v. Thompson,     535
S.W.2d 758 (Tex. Civ. App. - Tyler 1976, writ ref'd n.r.e.):
Lawton v. Citv of Austin, 404      S.W.2d 648 (Tex. Civ. App.         -
Austin 1966,    writ ref'd   n.r.e.).      Cf. Citv    of   Brookside
Villacie v. Comeau, 633 S.W.Zd 790 (Tex.), cert. denied,           459
U.S. 1087 (1982) (no comprehensive      Zoning   plan).

      Local    Government     Code   section    211.008    reads:

                (a) The governing      body of a municipality
            may provide   for the appointment      of a board of
            adjustment.    In the regulations      adopted under
            this   subchapter,     the; governing      body     may
            authorize    the    board    of    adjustment,       in
            appropriate   cases and subject to        appropriate
            conditions   and   safeguards,    to   make    special
            exceptions    to   the     terms   of   the     zoning
            ordinance    that   are     consistent     with     the
            general purpose and       intent of the     ordinance
            and in accordance      with any applicable       rules
            contained   in the ordinance.

                (b) A board of adjustment    must consist of
            five members to be appointed    for terms of two
            years.   The appointing  authority   may remove a
            board member for    cause on   a written   charge
            after a public hearing.       A vacancy   on   the
            board shall be filled for the unexpired      term.

                (c) The governing         body,    by    charter    or
            ordinance,    may provide for the appointment           of
            four alternate     board members to serve in           the
            absence of one or       more regular members          when
            requested    to   do   so    by the    mayor     or   city
            manager.     An alternate     member serves for        the
            same   period     as   a regular       member     and    is
            subject to removal        in the same      manner as      a
            regular    member.        A    vacancy       among     the
            alternate     members     is   filled     in   the    same
            manner    as    a    vacancy     among    the     regular
            members.

                (d) Each   case   before   the              board     of
            adjustment must   be heard   by at             least    four
            members.

                (e) The   board  shall    adopt    rules     in
            accordance  with any  ordinance   adopted    under




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    Honorable     John   F. Perry   - Page   3   (JM-1069)




                this subchapter.       Meetings   of the board     are
                held at the call of the chairman and at other
                times    as    determined    by  the   board.      The
                chairman    or   acting chairman     may   administer
                oaths and compel the attendance         of witnesses.
                All meetings     of   the board shall     be open   to
                the public.

                    (f) The board shall        keep minutes of     its
                proceedings   that    indicate the     vote of    each
                member on each     question or the       fact that    a
                member is absent or fails to vote.          The board
                shall keep    records of      its examinations     and
                other   official     actions.     The   minutes    and
                records shall     be   filed immediately      in   the
                board's    office    and    are   public     records.
                (Emphasis added.)

          On the face    of section    211.008,1   it does not   appear
    mandatory   that a city appoint a board of adjustment.          The
    use of "may" in subsection      (a) suggests that the appointment
    of such a board is discretionary,       although the case of   Sams
    v. Dema, 316 S.W.2d 165 (Tex. Civ. App. - Houston 1958, writ
    ref'd n.r.e.),   indicates   that a city attempting   to enforce a
    comprehensive   zoning plan without a board of adjustment       may



           1. The Local Government        Code was enacted in 1987 as           a
    nonsubstantive     recodification     of   existing    law.    Acts    1987,
    70th Leg.,     ch.   149, 5 51,      at   1308.    The   prior     law    for
    chapter 211     was    found    in articles      lolla    through     lOllm,
    V.T.C.S.      Section 211.008 was        derived from former        article
    lollg, V.T.C.S.,     which referred       not to the "governing         body
    of a municipality"       but, rather, to       the "local      legislative
    body" of a home rule city or of a general law               municipality.
    See Acts 1971, 62d Leg., ch. 742, § 1, at 2385.                The   courts
    have    often   identified      zoning    boards    of    adjustment       as
    "quasi-judicial"     or    "administrative"       bodies.      See   Murmur
    CorD. v. Board of Adiustment          of City of Dallas, 718         S.W.2d
    790 (Tex. App. - Dallas         1986, writ ref'd n.r.e.);         Board    of
    Adjustment    of Citv of San Antonio v. Nelson, 577 S.W.2d                783
     (Tex. Civ. App. - San Antonio 1979, writ ref'd n.r.e.),                  584
    S.W.2d 701 (Tex.       1979); Washinaton      v.   City of Dallas,        159
    S.W.Zd 579 (Tex. Civ.        ADD. - Dallas       1942, writ ref'd):        52
    Tex. Digest'Zd     Zonincf and*- Planninq     0 355 (1984).       See' ~also
    Citv of    Amarillo     v.   Staof, 101      S.W.2d    229    (Tex.    1937)
     (powers of board adjustment).




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be mandamused  to provide one.   See also Citv of Amarillo    v.
StaDf,  101 S.W.Zd  229  (Tex. 1937);  Mixon  Texas   Municipal
Zoning Law, 5 1.19 at l-26 (issue 3-1988).fL

      Nonetheless,    though the creation of a board of            adjust-
ment may be discretionary,       the word "may*' in subsection            (a)
of the statute     cannot be construed        to allow the      governing
body of a city to itself act as a board of adjustment                if one
is not appointed,       or to   appoint its own       members as      board
members   if such a board is created.         cf. Lauterbach     v.     City
of   Centralia,     304   P.2d    656    (Wash.    1956).      When      the
legislature     intended      that    the    governing     body      of     a
municipality     could    exercise     the     zoning    powers    of      an
appointive   commission    or board,      it plainly    so indicated       --
as it did    with zoning      commissions.      See   Local Gov't       Code
$3 211.007.   Cf.     Acts 1979,      66th Leg.,     ch. 754,     at    1869
 (source law); Coffee Citv v. Thompson,          suera (prior law).3



      2.   Whether the word "may"           in a statute is       permissive
or obligatory     depends     in great     measure     on   the  intent    and
object of the legislature          in making the enactment.          It means
*Umustlq
.       .when . the intent    is    that the public have an          interest
                     ._        .
in having the act aone (or a claim de iure that the power be
exercised).      See Rains v. Herring          5 S.W. 369 (Tex.        1887);
Xleck v.     Zonino     Bd.   of    Adiustment    of    the    City   of   San
Antonio,    319  S.W.2d   406    (Tex.  Civ.  App.   -  San  Antonio     1958,
writ ref'd).

      3.        Section        211.007    reads    in part:

                (a) To exercise the powers authorized              by
            this subchapter,       the   governing    body     of   a
            home-rule      municipality       shall,     and      the
            qoverninq    bodv of a seneral-law       municivality
            maY,   appoint     a    zoning    commission.         The
            commission    shall recommend     boundaries    for the
            original     zoning    districts     and  appropriate
            zoning regulations      for each district.       If the
            municipality       has     a   municipal      planning
            commission    at the    time of implementation         of
            this    subchapter,     the   governing     body      may
            appoint    that    commission     to   serve    as    the
            zoning commission.

            .    .   .   .
                                                                   (Footnote   Continued)




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       Unlike a zoning       commission,     which    merely advises         the
governing    body prior to the exercise of legislative                power by
the latter, a zoning board           of adjustment      is an     administra-
tive appellate      body charged      with deciding      appeals from        the
decisions    of    administrative       officials.      Local     Gov't    Code
5 211.010.4       See Mixon, Texas       MUniCiDal     Zoninca Law,      5 8.08
at 8-12     (issue     4-1989).      Under   the    scheme     of    statutory
comprehensive      zoning plans, those         aggrieved    or affected       by
an administrative         officer's     voidable     decision       (including
cities)     must      exhaust      administrative        remedies       before
petitioning     a    court   to remedy      the    matter.     g,g    Citv     of
Dallas v. Gaechter,        524 S.W.2d 400 (Tex. Civ. App. - Dallas
1975, writ dism'd); cf.          Austin Neishborhoods        Council,      Inc.
v. Board of       Adiustment    of   Citv of Austin,        644   S.W.2d     560
(Tex. App. - Austin         1982,   writ  ref'd    n.r.e.)      (ratification
of appeal by city council).

      The incongruity     of the governing    body being at the same
time an    appellant   and   the  adjudicator     of its   own   appeal
argues strongly against any supposed legislative           intent that
the governing    body of a city could, at its election,         act   as
the legislatively     contemplated   board    of adjustment    for   the
city.   Cf.   Attorney General      Opinion H-117     (1973)(election
commissions:     judges).     A   local   ordinance    purporting     to


(Footnote     Continued)

                (e)   If     a    aeneral-law       municiualitv
            exercises     zonino    authoritv      without     the
            aooointment      of  a zonino     commission,      any
            reference    in    a law to   a municipal       zoninq
            commission    or olannino    commission    means   the
            sovernina       bodv    of    the      municiwalitv.
            (Emphasis added.)

       4.    Subsection    (a) of section        211.010   provides:

                (a) Any  of   the   following    persons   may
            appeal to the board of adjustment      a decision
            made by an administrative    official:

                   (1) a    person            aggrieved     by     the
               decision: or

                   (2)   any officer, department,   board, or
               bureau of the municipality    affected by the
               decision.




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Honorable   John   F. Perry   - Page   6   (JM-1069)




authorize   such a role for the governing    body would seemingly
fail the    test  of due   process   of law,   which   demands  an
impartial   trier of facts.   See   Thompson v. Texas State    Bd.
of Medical Examiners,    570 S.W.2d 123 (Tex. Civ. App. - Tyler
1978, writ ref'd    n.r.e.); Martinez     v. Texas   State Bd.  of
Medical Examiners,     476 S.W.2d   400 (Tex.    Civ. App.   - San
Antonio   1972, writ ref'd n.r.e.).

      We conclude   that the    governing  body of a municipality
that chooses not to appoint       a separate board of    adjustment
is not authorized    to act   as a de facto board of     adjustment
itself.    Although  subsection    (a) of section 211.008 may    not
mandate the establishment       of such a board, it     effectively
precludes   the exercise    of such a board's powers except        in
conformity   with statutory   requirements.5

      We also    conclude that      members of   the governing     body
cannot be    appointed   to    serve on    such a board if     one    is
created.   However uncertain      might    be the proper reading     of
subsection   (a), there     can be no     doubt about the   mandatory
nature of subsection     (b) of section 211.008.       It states that
a board of adjustment        -
                            "must   consist of   five members to     be




       5. There are listed in Mixon, Texas Municipal                Zoninq
&y   3 8.01, several cases that apparently           assumed -- without
holding --    that entities       other than     boards of     adjustment
could perform    functions    that    the enabling    act delegates       to
the board.     Several of them were decided prior to the              Texas
Supreme Court's decision       in    Bolton v. Sparks, m.              None
directly   addressed     the   issue here.       See   Cleburne     Livinq
Center, Inc. v.      City of     Cleburne,   726 F.2d     191 (5th     Cir.
1984), aff'd     in Dart     and   vacated in part, 473         U.S.    432
 (1985); Fountain Gate Ministries,         Inc. v. Citv of Plano, 654
S.W.2d 841     (Tex.   Civ.    App.    - Dallas      1983,    writ    ref'd
n.r.e.);   Slater v. City of River Oaks, 330 S.W.2d 892               (Tex.
Civ. App. - Fort      Worth 1959, no writ);        Dunawav v. Citv        of
Austin, 290 S.W.2d 703 (Tex.          Civ. App. - Austin 1956,         writ
ref'd n.r.e.);      Consresation      Comm.   v.   City    Council,      287
S.W.2d 700 (Tex. Civ. App. - Fort Worth 1956, no writ).                   As
observed   in 22 Texas Practice       233 (Singer, Municipal       Law and
Practice   5 502),    "The    language     of the    statute    seems     to
contemplate    that a board      [of adjustment]     separate    from   the
city council will be appointed."




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appointed     for terms     of two   years," and           it authorizes       the
appointing     authority    to remove appointees           for cause.6

        In Ehlinser v.  Clark,        8    S.W.2d    666      (Tex.   1928),   the
Texas    Supreme Court said:

            It is because of the obvious         incompatibility
            of being both a member        of a body making      the
            appointment   and    an   appointee   of   that   body
            that the    courts    have with     great   unanimity
            throughout    the    country    declared    that    all
            officers who     have the     appointing   power    are
            disqualified    for appointment      to the    offices
            to which they may appoint.

8 S.W.Zd at 674.   Also, in St. Louis Southwestern     Rv. Co. of
Texas v. NaDleS   Index. School    Dist., 30   S.W.Zd 703    (Tex.
Civ. ADD. - Texarkana    1930, no writ),    the court held    null
and void the appointment   by's school.board   of themselves    as
a board of equalization   for school district taxes, saying:

                The statute plainly evidences   the will    of
            the Legislature    to grant   the power   to  the
            board of trustees    to select   and appoint    an
            official board of equalization    of assessments
            to be   composed,  not  of themselves,    but   of
            other qualified   and suitable persons.

30 S.W.2d     at 706.      See also   Attorney      General     Opinion    JM-934
(1988) .

      In our opinion,    the governing   body   of a municipality
that has   adopted    a comprehensive    zoning   plan  cannot    --
consistent  with the regulatory    statutes    -- act as a   zoning
board of adjustment    pursuant to   a local ordinance,    nor  may



      6.   Subsection     (b) does not specify that the         governing
body of    the municipality       itself    must be    "the    appointing
authority,"    but   in    any   case    "the   appointing     authority"
cannot appoint members of the governing           body to the board of
adjustment.     The power of the governing        body of the city        to
control or     alter by     ordinance   the   conditions    under     which
"the appointing     authority"     (whoever it may be) exercises        the
appointive     power    effectively     eliminates     members     of   the
governing   body as     valid appointees.        See Attorney      General
Opinion JM-386     (1985); 67 C.J.S. Officers        5 23 at 269.




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members of the  governing  body be appointed  to   serve                on   a
separate board of adjustment.   See senerallv  Citv of                  Pharr
v. TiPDit, 616 S.W.2d 173 (Tex. 1981).

                               SUMMARY
                The governing      body of   a city   cannot   --
            consistent     with     the  statutes     regulating
            zoning matters --       act as a    zoning board   of
            adjustment    pursuant   to a local ordinance,    nor
            may   members      of   the    governing   body    be
            appointed   to    serve on   a separate    board   of
            adjustment.




                                              llkb
                                                Very   truly   yo   ,
                                                         .


                                                JIM      MATTOX
                                                Attorney  General   of Texas

MARY KELLER
First Assistant       Attorney    General

LOU MCCREARY
Executive  Assistant      Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney          General

RICK GILPIN
Chairman,  Opinion      Committee

Prepared by Bruce Youngblood
Assistant Attorney General




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