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April 13, 1987 Eonorable Gibson D. (Gib) Lewis opinion No. JM-676 Speaker Texas Eouse of Representatives Re: Whether a public street or P. 0. Box 2910 alley owned in fee simple may Austin. Texas 78769 be used in computing 20 percent of land area for purposes of article 1011e. V.T.C.S. Dear Speaker Lewis: As Speaker of the Texas House of Representatives, you request an opinion concerning article lOlle(a). V.T.C.S., which provides in pertinent part the following: (a) [Zoning] regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed. modified. or repealed. In case, however, of a written protest against such change. signed by the owners of 20 per cent or more either of the area of the lots or land included in such proposed change, or of the lots or land immediately adjoining the same and extending 200 feet therefrom, such amendment shall not become effective except by the favorable vote of three-fourths of all members of the legislative body of such municipality. In computing the percentage of land area, the area of streets and alleys shall be included in the cmpucation. (Emphasis added). V.T.C.S. art. 1011+(a). Specifically, you ask: In determining under article lOlle[a] whether a protest has been signed by the owners of 20 percent or more of the area of the lots or land included in the proposed zoning change. is d protesting owner allowed to count, coward the 20 percent. the land in the area of the proposed change chat the owner owns in fee simple but chat is used as a public street or alley under an easement granted to the municipalicy? p. 3103 Eonorable Gibson D. (Gib) Lewis - Page 2 (m-676) Our answer is "yes." Article 1Olle sets forth the procedure for amending or changing zoning ordinances by a city's legislature. Subsection (a) of article 1Olle provides that if "owners of 20 percent or more either of the area of the lots or land included in such proposed change, or of the lots or land immediately adjoining the same and extending 200 feet therefrom" protest in writing, a three-fourths favorable vote of the city legislature is required before any zoning change can be effected. Notably, House Bill No. 1686 of the Sixty-ninth Legislature (herein- after "the amendment" or "House Bill No. 1687") amended article lOlle(a) by adding the following stipulation: In computing the percentage of land area, the area of streets and alleys shall be included in the computation. (Emphasis added). kts 1985. 69th Lea.. ch. 201. $1. at 789. The word "shall" is generally .construed-to be mand&ory. Green v. County Attorney of Anderson County,
592 S.W.2d 69, 73 (Tax. Civ. App. - Tyler 1979, no writ); Attorney General Opinion JM-561 (1986) at 4. In this manner, the legislature adopted mandatory language which explicitly requires including the area of streets and alleys when computing the percentage of land owned by persons who protest a zoning change. The lrgislative history of the amendment reveals that House Bill No. 1686 was prompted by the opinion rendered in Strong v. City of Grand Prairie, 679 S.W.Zd 767 (Tex. Civ. App. - Fort Worth 1984, no writ). In Grand Prairie, the court concluded that, when written protests are filed in response to a zoning change, in determining the base area (or denominator) in which the protest area (or numerator) is 20 percent, the area of streets is excluded. (Emphasis added).
Id. at 770.The legislature responded to this decision by enacting the amendment requiring the inclusion of streets and alleys in the article 1011=(a) computation. Based upon the plain moaning of the amendment and its legislative history. the legislature clearly intended article lOlleta) 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. See Anderson v. Penix,
161 S.W.2d 455, 459 (Tex. 1942) (words of a stafute are the best evidence of legislative intent); Cify of Irving v. Dallas County Flood Control District,
377 S.W.2d 215. 219 (Tex. Civ. App. - Tyler), rev'd on other grounds,
383 S.W.2d 571(Tex. p. 3104 t Honorable Gibson D. (Gib) Lewis - Page 3 (JM-676) 1964) (co determine legislative intent "it is proper to consider the history of the subject matter involved, the end to be obtained, the mischief to be remedied and the purpose to be accomplished"). The remaining issue is whether streets and alleys privately owned in fee simple, but dedicated to the city as public easements, constitute "streets and alleys" to be included in computing land area held by protesting land owners pursuant to article 1011=(a). As a preliminar; matter, incorporated cities or towns have statu- tory authority to open. manage, and maintain streets and alleys. See, s. V.T.C.S. art. 1016. Typically, a street refers to a public thoroughfare in a city or town. Refugio v. Strauch,
29 S.W.2d 1041, 1043, jdmt. adopted (Tex. Coaua'n App. 1930). A public alley is defined as generally narrower than a street. but nonetheless governed by the sama legal principles applied to streets. Quanah Acme 6 P. Railway Co. v. Swearingen. 4 S.W.Zd 136, 139 (Tex. Civ. App. - Amarillo 1927, writ ref'd). Generally, a person owning land abutting a street or alley which has been dedicated to the public by plat. conveyance, or prescription holds the fee title to the center of the street or alley. Fort Worth v. Southwest Magazine,
358 S.W.2d 139, 141 (Tex. Civ. App. - Fort Worth 1962, writ ref'd n.r.e.). cert. denied,
372 U.S. 914(1963); see also 22 I. Singer, Municipal Law and Practice 5681 (Texas PractG 1976). The fee title is, however, subjekt to a public easement. See City of Mission v. Popplewell, 294 S.W.Zd 712. 715 (Tex. 1956). Because streets and alleys are frequently privately owned in this manner. it is reasonable to conclude that the legislature intended to include streets and alleys that are privately owned in fee simple but that are dedicated to the city as public easements within rhe general term "streets and alleys" in section (a) of article 1Olle. See also Johnson v. Township of Montville.
109 N.J. Super. 511.
264 A.2d 75, 78 (NJ. 1970). Furthermore, testimony before the House Committee on Urban Affairs indicates chat the purpose of the requirement is that streets and alleys be included in the computation to simplify the computation. That purpose would not be served if article 1Olle were to differentiate between streets and alleys owned by a city in fee simple and privately owned streets and alleys. See Hearing and Testimony on H.B. No. 1686, before the iiouse Coztee on Urban Affairs, 69th Leg., public hearing (March 20. 1985) (tape recording available from House Hearing Reporter). Thus, streets and alleys held as public easements and privately owned in fee simple constitute "streets and alleys" to be included in computing the land area held by protesting land owners for purposes of article 1011=(a). SUMMARY Pursuant to section (a) of article 10110, V.T.C.S., streets and alleys held in fee simple by p. 3105 Honorable Gibson D. (Gib) Lewis - Page 4 (JM-676) protesting land owners and dedicated for use as public easements are CO be included in computing the percentage of land area owned by the protesters. JIM MATTOX Attorney General of Texas JACX HIGHTOWER First Assistant Attorney General MARY KELLER Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Colmnittee Prepared by Jeff Millstone Assistant Attorney General p. 3106
Document Info
Docket Number: JM-676
Judges: Jim Mattox
Filed Date: 7/2/1987
Precedential Status: Precedential
Modified Date: 2/18/2017