THE ATTORNEY GENERAL
OF TEXAS
February 7, 1989
Honorable George Pierce Opinion No. JM-1014
Chairman
Committee on Urban Affairs Re: Procedures for pro-
Texas House of Representatives testing a proposed change
P. 0. Box 2910 in a zoning classification
Austin, Texas 78769 (RQ-1472)
Dear Representative Pierce:
you request our opinion concerning the proper interpre-
tation of sections 211.006 and 211.007 of the Local Govern-
ment Code as they relate to protests of proposed zoning
changes. Section 211.007(c) requires written notice of
proposed zoning changes to be sent to "each owner, as
indicated by the most recently approved municipal tax roll,
of real property within 200 feet of the property on which
.the change in [zoning] classification is proposed.tt Section
211.006(d) provides the following:
(d) 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 affir-
mative vote of at least three-fourths of all
members of the governing body. 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
Jmmediatelv adioj,&lDgthe area covered by
the proposed change and extendina 200 feet
from that area. (Emphasis added.)
You ask whether section 211.006(d)(2) includes owners of
property within 200 feet of the area covered by the proposed
zoning change only if their property shares a boundary
P. 5233
Honorable George Pierce - Page 2 (JM-1014)
with the property covered by the proposed change.1 If it
requires a common boundary, YOU also ask whether the
adjacent property would have to extend 200 feet to be
included in the protest area.
We conclude that section 211.006(d) of the Local
Government Code includes an owner of property within 200
feet of the area covered by a proposed change in zoning
classification, whether or not the property of the pro-
testing landowner shares a boundary with the area covered by
the proposed change or extends a distance of 200 feet from
such area.
Prior to the enactment of the Local Government Code,
the substance of section 211.006(d) was contained in article
lolle, V.T.C.S. Article 1Olle was enacted by the 40th
Legislature in 1927. Acts 1927, 40th Leg., ch. 283, 5 5, at
424, 425. The predecessor of section 211.007(c), V.T.C.S.
article lOllf, was also enacted in 1927. Id. 5 6 at 425.
As originally enacted, article 1Olle provided for the
submission of written protests to proposed zoning changes by
the owners of 20 per cent or more either of
the area of the lots included in such pro-
posed change, or of those immediately adja-
cent in the rear thereof extending 200 feet
therefrom, or of those directly opposite
thereto extending 200 feet from the street
frontage of such opposite lots . . . .
Article 1Ollf required notice in terms virtually identical
to section 211.007(c).
1. You ask about 81standing1@to make a zoning protest.
It should be noted that section 211.006(d) does not grant
standing in the sense that it precludes persons other than
those listed in the statute from registering their objec-
tions to the proposed change in zoning classification.
Rather, it provides that upon the submission of a written
protest meeting the terms of the statute, the amendment to
the zoning regulation must receive a favorable vote of
three-fourths of all members of the legislative body of the
municipality to become effective.
p. 5234
Honorable George Pierce - Page 3 (JM-1014)
Article lolle was amended in 1971 to provide that
written protests may be submitted by the owners of 20
percent of either the area covered by the proposed zoning
change or "the area of the lots or land immediately
adjoining the same and extending 200 feet therefrom." Acts
1971, 62d Leg., ch. 942, 5 1, at 2864. The amendment
apparently was an attempt to simplify the language of the
statute, but it is unclear whether the legislature intended
to change the meaning of the statute. This language was
preserved in section 211.006(d)(2) of the Local Government
Code.
A careful reading of section 211.006(d)(2) reveals that
the phrase "immediately adjoining . . . and extending 200
feet" describes the area from which landowners are permitted
to sign a written zoning protest. The phrase does not
describe the lots or land eligible to be included in the
protest area. Thus, the appropriate reading of section
211.006(d)(2) is that it includes owners of lots or land
within the area "immediately adjoining the area covered by
the proposed change and extending 200 feet from" the area
covered by the proposed change.
Our reading of this provision is supported by,the only
case to construe the language of what is now section
211.006(d)(2). In Strona v. Citv of Grand Prairie, 679
S.W.2d 767 (Tex. App. - Fort Worth 1984, no writ), the court
read articles 1Olle and 1Ollf in harmony, equating the class
of landowners entitled to notice under article 1Ollf with
the class of owners specified in article 1011e:
The trial court also concluded as a matter of
law that under art. 1Olle those who are
entitled to sign zoning change protests are
the same as those entitled to notice by art.
1011f. Article 1Ollf requires written notice
of all public hearings on proposed zoning
changes before the city's zoning commission
to owners 'of real property lying within 200
feet of the property on which the change in
zoning classification is proposed . . . as
the ownership appears on the last approved
city tax roll.' TEX.NEV.CIV.STAT.ANN. art.
1Ollf (Vernon Supp.1984). The trial court,
also as a matter of law, concluded that in
determining the base area (or denominator) in
which the protest area (or numerator) is 20%,
the area of streets is excluded.
p. 5235
Honorable George Pierce - Page 4 (JM-1014)
We hold that both of these conclusions of
law are correct, and that a readina of art8.
10
&&ent of the leaislature was to De&
written DrOteStS Of DrODOSed ZOninc chancres
pv the owrs of 'real nronertv' lvina w1thi.h
200 feet of the Dr(2Rsirtv on which the zonincr
ae is DrODOSed. which own- 1s deter-
mined from the last annroved citv tax roll .
Since street right-of-way is not included
on the tax rolls, the area of the streets was
properly excluded. (Emphasis added and
citations omitted.)
679 S.W.2d at 770. The court's construction of article
lolle places no emphasis on the conjunctive nandM in the
phrase "immediately adjoining . . . m extending 200' feet
therefrom" and thus means that an owner of property within
200 feet of the area included in a proposed zoning change is
entitled to sign a zoning protest even though his property
does not share a boundary with the area covered by the
proposed change or extend the entire 200 feet from the area
covered by the proposed change.
A statute is the creation of the legislature, and if an
interpretation of a statute by the courts is unacceptable
to the legislature, the simple remedy is to amend the
statute. Warmon v. Wustana Aviation. Inc,, 430 S.W.Zd 182
(Tex. 1968). Thus, when the legislature amends a statute,
the courts presume that the legislature was fully aware of
the construction given the statute by the courts at the time
of the amendment. & Warthan v. Havnes, 288 S.W.2d 481,
484 (Tex. 1956). The failure of the legislature to amend
the statute to avoid a particular construction placed on a
provision of the statute is considered significant, espe-
ciallv if the statute has been amended in other places.
See. &.a%, Woss v. Gibbs, 370 S.W.2d 452 (Tex. 1963); San
Antonio Union Junior Colleae Dist. v. Daniel 206 S.W.Zd 995
(Tex.
:----~
1948).
~~ ~~’
In such instances. the leaisla&ure8s inaction
indicates either legislative approval oi the construction or
general dissatisfaction of insufficient strength to impel
legislative action. Woss v. Gibbs, suora.
The legislature reacted to the Strong decision by
adding the following language to article 1011e: I1
In
computing the percentage of land area, the area of streets
and alleys shall be included in the computation." Acts
p. 5236
Honorable George Pierce - Page 5 (JM-1014)
1985, 69th Deg., ch. 201, § 1, at 788, 789. The essence of
this provision is now found in section 211.006(e) of the
Local Government Code. The amendment did not disturb the
court's holding concerning a property owner's eligibility to
sign zoning protests, and the statute has not been
subsequently amended to avoid that construction. We can
therefore treat these events as constituting either the
legislature's tacit approval of Strong in that regard or as
an indication of insufficient legislative discontent with
that aspect of the case to warrant legislative response. In
either event, Strong remains the most recent and relevant
interpretation of section 211.006(d), and for that reason we
conclude that the provision authorizes the submission of
written protests to proposed changes in zoning
classifications signed by the owners of any property within
200 feet of the area covered by the change, whether or not
the properties of the protesting landowners share a boundary
with or extend a distance of 200 feet from the area covered
by the proposed change.
Your next question concerns the language added to
article 1Olle following Strong. It is prompted by the
following statement in Attorney General Opinion JM-676
(1987):
[T]he legislature clearly intended article
lOlle(a) [now section 211.006(e) of the Local
Government Code] to require that streets and
alleys be included in computing either the
area of lots or land included in the zoning
change area, or the area of lots or land
adjoining the proposed change area and
extending 200 feet therefrom.
Your question is
whether a city may allocate one-half of the
area of any adjacent street or alley to a
property eligible to participate in a zoning
protest for purposes of determining who
controls the streets and alleys with regard
to such a protest.
We will assume for the purposes of this opinion that your
question refers to property within a zoning protest area
that abuts a street or alley. See Black's Law Dictionary 11
(5th ed. 1979) ("abutt means,%ter alia, to touch, join
p. 5237
Honorable George Pierce - Page 6 (JM-1014)
at a border, or border on: "abutting" implies a closer
proximity than lladjacent,l'
b, no intervening land).
The issue in Attorney General opinion JM-676 was
whether the amendment to article 1Olle created a distinction
between (1) streets and alleys held in fee simple by
protesting landowners and dedicated for use as public
easements and (2) streets and alleys owned by a city in fee
simple. The concern was that the statute excluded privately
owned streets and alleys from the computation of land area
required by article 1011e. The opinion cited several
authorities for the general rule that, unless otherwise
declared in the conveyance, an owner of land abutting a
street or alley which has been dedicated to the public holds
the fee title to the center of the street or alley, subject
to a public easement. See also 43 Tex. Jur. 3d, Biahwavs
and Streets 5 116. Municipalities may also acquire fee
simple to streets and alleys, either through grant,
purchase, or condemnation. &9 & The purpose of the
amendment to article lolle, we noted, was to simplify the
computation of the percentage of land area, a task made more
difficult and costly as a result of the Stronq case. We
therefore concluded the legislature intended no further
complications by excluding privately owned streets and
alleys from the computation.
Your inquiry is answered by the language of subsections
(d) and (e) of section 211.006 of the Local Government Code
and by Attorney General Opinion JM-676. Subsection (d) is
quite clear in its requirement that a written zoning protest
be signed by the owners of at least 20 percent of either of
the areas specified in the provision. Subsection (e) re-
quires streets and alleys to be included in the computation
of the percentage of land area under subsection (d). Sub-
section (d) thus authorizes the owners of streets and alleys
in the protest area, including cities, to sign the zoning
protest. See Geary, Davenport, and Minick, Annual Survev of
Texas Law: Local Government Law, 40 Sw.L.J. 727, 732-733
(1986).
Attorney General Opinion JW-676 makes it clear that, as
a general matter, an owner of land abutting a street or
alley holds fee title to the center of the street or alley,
unless otherwise provided in the conveyance to the land-
owner. By including the area of streets and alleys in the
section 211.006(d) computation, the legislature expressed
its intention not only to simplify the computation, but to
give the owners of land supporting streets and alleys in
p. 5238
Honorable George Pierce - Page 7 (JM-1014)
the protest area greater say in the rezoning process.
Accordingly, we conclude that section 211.006 of the Local
Government Code authorizes a municipality to allocate the
area of a street or alley in the manner you describe only
when the adjacent landowner holds fee title to the center of
the street or alley and only if the allocation conforms to
the demarcation of the center line of the street or alley.
SUMMARY
An owner of property within 200 feet of
the area covered by a proposed change in zoning
classification is entitled to sign a written
zoning protest under section 211.006(d) of the
Local Government Code, whether or not the
property of the protesting landowner shares a
boundary with the area covered by the proposed
change or extends a distance of 200 feet from
such area. Section 211.006 authorizes a muni-
cipality to allocate one-half of the area of a
street or alley to abutting property i;;luf;z
within the zoning protest area only
owner of the abutting property holds fee title
to the center of the street or alley and if the
allocation conforms to the demarcation of the
center line of the street or alley.
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
IOU MCCRKARY~
Executive Assistant Attorney General
JUDGE ZOLLIE STKAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
p. 5239
Untitled Texas Attorney General Opinion
Combined Opinion