                          @ffice of tlJe morncp             &mm1
                                      dbtate of Gexae
DAN MORALES
 ATTORNEY
      GENERAL                           August 27,1996



     The Honorable Harv9 Hilderbrm                OpinionNo. DIM410
     Chair
     Committee on Human Se&es                     Re: Whether the tapmnajority require
     Texas House of Repre-                        mutt in Local Oovermnent Code section
     P.O. Box 2910                                212.015(c) ia unco~onal    and related
     Austin, Texas 78768-2910                     questions (RQ-844)

     Dear Rqmscntative Hilderbrm:

            You ask about the constitution8iity of Loul chmmalt      code section 212.015, a
     xoning statute which governs replatig of a subdivision or part of 8 subdivson ill cer&h
     cucurmmces. It provides as follows:
                   (a) In addition to compb     with Section 212.0142 a replat
               without vacation of the ptwedhg plat must conform to the
               requiraaents of this section if:
                        (l)duriugtheprecedhg5veysM,anyoftbcareatobe
                   feplattedwaslinlitedbyaninterinlorpemuaentxoldngclass-
                   ihtion to residential use for not more than two residential units
                   per lot; or
                        (2) any lot in the prading pht was limited by deed
                   restrictions to residential use for not more than two reside&l
                   units per lot.
TheHo~~~rableHafwy   Hilderbran - Page    2    (DM-410)




             (b) Notice of the heating required under Section 212.014 shall
         be given before the 15th day beEorethe 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
             locate; and
                  (2) by written notice. with a copy of Subsection (c)
             attached, forwarded by the municipal authority responsiile fbr
             approving plats to the owners of lots that are in the original
             a&division 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 subdivisionwithin the extmterritorial
             jurisdiction, the moat recently approved county tax roll of the
             property upon which the replat is requested. The written notice
             may be delivered by depositing the notice, property ad&eased
             with postage prepaid, in a post office or postal depository within
             the boundaries of the municiprdii.
             (c) g the ptymsed replat requires a wriamx and is prorested
         tn accmhce      wirh this subsectian, the pqused   rep& must
         raehe, in a&r to be qqmwd, the t&immtiw wte of at kast
         three&wlhs qf tbe members present of 4% munk.a@ pkmning
         cammissionor gowning bcx@,or both.1 For a legal protest, written
         iamwnentsdgnedbytheownasofatleast20pacentoftherreaof
         the lots or land immediately adjoining the area covered by the
         proposed~~tandexrending200fed~tbatrrrra,butwithinthe
         o@inal subdiios     must be fled with the municipal planning
         c4xnnkion 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 shsll be included.
             (e) Compliancewith Subsections (c) and (d) is not required for
         approvalofareplatofpartofapreccdh~gplatiftheareatobe
         replated was designated or resuved for other than single or duplex
         family residential use by notation on the last legally recorded plat or
         m the legallyrecorded restrictions applicableto the pk.
The Honorable Harvey Hildekan - Page 3            (DM-410):




LocaI Gov’t Code 8 212.015 (footnotes added) (emphasis added). In partiadar, you ask
ahout the constitutionality of the requirement in subsection (c) that a proposed @at
requiringa-          that is protested by adjoining landownas must be approved by the
atlbmdve vote of at least three-fxrths of the members pment of the municipal planning
c4xnmissionor goveming body.

       Your letter suggests that section 212.015(c) constitutes a taking because ‘[t]he
hrndle~a~ownamustovercomeinawewhacndghbonprotest-thethree-
fourths planning commission vote approval requhwnent - 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
aMrary and not reasonably related to the health, sakty, or waltke of the c&ens of
Texas. We disagree.

        First, while the three-fourths approval requirement may make it more &Iicult for a
landowner to obtain a replat, it dots not foreclose the possiiity of a rcplat. Futthamore,
provisions requiring a supemutjority in the event of adjoining landowners’ protest to
=h?Jwges=a              common feature of state zoning laws’ and courts lwe conclude4
that such provisions are constitutional. Specifically.courts have held that these provisions
do not impamissiiIy delegate legislative author@ and that they serve a kgitimate
purpose-protection of the interests of adjoining lz4ndowners. In responw to the
contend011that a statute with a similar supermajority qkcment violated the constitution




         J&egeRd~RoeLnTlvL At4DmoN.&5RlchNLAwmnmlNo~4.34(36d.1986);aA
EUOENElbicQmm, THELAW OPMumclPALc!oiuoMlloNs, 05 25.244. .245. .24a (36 (d 1986); 101
C.J.S. zmhg 90 114.122 (1958).

       *Ilw rtptutory prakamw to SC&R 212.015 prwidal that if tma~y plump d dpining
lwdoww6prolerded.3pmpowtupktlbcawrinalrppwrldslxty-sixwdtwothirdcpenuItdewh
tdownm    was uqoimd 6x qirinal. AU of April 13. 1981.67th Lt& RS.. ch 67. f ‘(“Kz), 1981
Tex. &a laws 149, 150. A sate app&tc UJult wwludcdtJ3stthir-pmvirion-

lfwh P&f&g convn‘n. 786 s.w.2d 563,565 mx. App.-Fm wolth 1990, no writ). unlike tbc
rcbcmc;ltirawinMlR~,rhcameat~vhichbtrbeenfodllitdrad~docI~~



Gainmvilk, 355 SoAd 1172,1173 (Fla 1977); 7hqer v. Ci(v of Qninqv,264 NH26 689.690 (Mass.
1910); &udberg v. Cd@oflkbxtou,  182 NP.26 142.146 @Il. 1962); Koppd Y. CYlyofFaInmy, 371 P.2d
113,115-16 (ICan.1962h A’-hpetiu            Co. Y. Pcdfns, 39 N.W.26 25,27 (Mich. 1949); Famer
v. Meeker, 163 A.26 729.733 (?i.J.Sup.Cl. 1960); see oh Prince Gragc’s Cmnfy v. MrBridc, 302
A.2d 620.623-24 (?dd. 1973).
TheHonorableHsrv9Hilderbran           - Page 4        (DM-4 10)




by improperly delegating legislative authority, denying equal protection of the laws, and
infdnging upon the people’s right to elect legislator one ofiquoteds court stated,
                The%? Con!diMio~       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 amendiig
           its ordinance. It merely requires a percentage of vote greater than
           the usual majority where a proper protest has been filed. That the
           nnmicip&y 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
           POW-=
Fmer     v. Meek, 163 k2d 729, 733 (NJ. Sup. Ct. 1960) (citations omitted). Relying
on this and other hoMings, the Supreme Court of Florida speciticagy rejected the
wntention that a supermajority statute was arbitraty and unreasonable and not reasonably
related to public health, safety, or welfare. See Hope v. C!& of Gainesville,355 So.Zd
1172.1174 (Fla. 1977) (“It is clear that the purpose of a provision requiring a greater than
za        vote for a change of the Tning +ssification upon-the Sling of protests is to
          measure of added protectron agamst unwanted or rll-consrderedchange upon
thoae property owners who would be most affected by it.“) (citing Fmmer v. Meeker, 163
k2d 729).6

       For the reasons stated in these cases, we conclude that the section 212.015(c)
aupennajority requirunent is not unwnstitutional on its fbce. Of cause. a particular
planning commission decision disapproving a replat pumuant to section 212.015(c) may
constitute a taking. The determination whether a particular plan&g commission decision
disappmving a replat wnstitutes a taking involves questions of fact and is therrf0t-e
beyond the purview of an attorney general opinion.

       YOU .a& whether section 212.015(c) lacks auEcient standa& to guide the
planning commission in voting on a proposed repbit. Your letter suggests that planning
connnkion members might decide to deny a proposed replat for personal or political

       s&e, cg., lhmper v. Clly of Qeincy, 264 N.E.M at 690; l.fredbergY. City of W&zton, 182
N.E.M at 146.

        6% a&o Hope v. C@vof Gdnentlllc. 355 S0.2d 1173-14; i%nqh?r Y. Quiqv, 264 N.E.Zd at
690-91; Famwr Y. Meeker, 163 A.Zd at 733 (supnnaj~tity provisiOnSheld mt to violate Equal Pmtcction
twJJw*
The Honorable Harvey Hildetbrau - Page 5        (DM-410)




masons. We do not believe that this possiiity makes the section 212.015(c)
mpamajody requknd           unwnadtutionalon its &cc. First, this possibiity is not unique
to protested replat proposals, and could arise in the contaxt of a platting or unprotested
tepMng decision. Second, chapta 212 is not devoid of standards. Local Govemmeut
Code section 212.010 sets forth ataudards for approving plats. These standards apply
equally to approvals of proposed replats. See Local Gov’t Code 6 212.001(2) YPlat
includes a replat.“). Of course, a partiadar decision to deny a protested rcplat proposal
maY& ttnmaowble or arbii.           but the dctemtbmtion whether a particubu decision is
unreasonable or arbitrary involves questions of fact and is therefore beyond the putview of
an attom ‘generalopinion.’

        In response to your query whether a planning commission should he required to
provide a writtm tinal datennination outlining the specific reasons for the denial of a
protested replat apptication, we note that section 212.009(e), see i@a 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
3UCharequestwaivesanyckimthathewasdeniedprocedunrldueprocess~rthe
decision-nmking body failed to disclose the infommtion oh considered in making its
de&ion. WimdwnLumber Co. v. City of College S&lion, 752 S.W.2d 744, 748 (Rx.
App.-Houston [lst Dist.] 1988. no writ).

       FWly, you also ask whether procedures adopted by certain municipalitiesconflict
with the timelines for platting set forth in section 212.009 of the Local Government
Code.* Your letter states that “~]oveming bodies are skirting this requirement by

       ‘racfJLXthJl@JWhlg   wauldmlwadty~-pc~bypopltt~in
&uyingaprqmsedwaingchaogo6oe6adDcarnrilyetalea~ddeaiaIdrukolltinduepfocea3.
sl?eckmbri~..Ltd. v. Ci~OfNater~, 881 F.2d l5m,1579(lllb cir. 1989)(ciIingcases).

       sth212.009     pmvida in p3id     pin:
TheHonorab~eHarv9Hilderbran - Page 6          (DM-410)




            allow Dmoerlv owners to file the rq&. Their internal processes only pamit
landowners to i&v to fik by only allowing the use of a ‘prelimiwy’ plat, while not
allowing the applicant to tile a ‘6nal’plat.” (Emphasis in original.) We agree that the
timelines set forth in section 212.009 apply to proposed replats. See Lccal Gov’t Code
§212.001(2) (“‘Plat’ includes a replat.“).s The determination whether any spcciiic
municipalprocedures conflict with section 212.009 would require the resolution of factual
questions, as would the detcrrnination 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 deiinitkely resolved in an attorney general opinion.10
ThcHonombleHa~~9Hildchan        - Page 7   (DH-4 10)




                                SUMMARY

              The supermajority requirement in Local Govanment Code
         section 212.015(c) is not unconstitutio~I on its face.




                                              DAN MORALES
                                              Attom General of Texas

JORGE VEGA
Fii Assisulnt Attom   General

SARAH J. SHJRLEY
Clmir, Opiion Committee

PiepardbyMaqRCrouta
hktant Attorney General
