Untitled Texas Attorney General Opinion ( 1987 )


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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 or repealed.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