Untitled Texas Attorney General Opinion

@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