Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
Lily 5, 1984
JIM MATTOX
Attorney General
Suprem cwrl SulldlnQ Booorable Fred M. Ba,xker opinion, no. ``-180
P. 0. Box 11548
Parker county Attorcey
Auslln. TX. 7S71I. 2!m
512l4752661 County Courthouse Be: Whether an auxiliary county
Telex 81a674.1367 Weatherford. Texar 76086 courthoure 10 subject to city
telecopier 612l476.0266 zoning ordinances
714 Jackson.Sulle 700
Dear Mr. Barker:
Dallas. TX. 75202ao6
214i742+.Q44 You ask whether Parker County’s uee of a tract of land for an
auxiliary courthoum! within the city limits of the county seat la
eubject to ,the city’s ‘zoning ordinancea and building codes. We
924 AIberIa Ave.. Sullr 160
‘aso. TX. 76Wt279.3
conclude that the ccunty’a use of land for an auxiliary courthouse is
3Iol5353464 subject ~to the munic:ipality’e zoning ordinances only tom the extent
that nuch ordinancmt ‘do not prevent the county from reasonably
locating its auxilicuy courthoucle within the municipal limits of the
1001Texas.sqite 7w county seat. Addit:looally, ve conclude that the county muat comply
Houslon. TX. 770023111
with the munfcipalitp’e building and fire coder.
713i223.6666
Texas courte have yet to determine the acope of a municlpality’e
606 Broadway.Suite 312 zoning power over county property located within municipal llmita. We
Lubbock.TX. 794014472 recently held that buildinge, structures. and laod controlled by
6ow747-6236
federal or etate aga!c,ciem ari ixeapt from municipal ronlug. Attorney
General Opinion m-117 (1983). Bowever. a political rubdivision’o
4366N. Tenlh. Sull. S property Is not lta teproperty for purpoaea of resolving conflict8
MCAIIen.TX. 76601-1666 with another politiml rubdivirion. Port Arthur Independent School
5w662-4647 Dlatrfct v. City of Grovea. 376 S.W.2d 330, 333 (Tex. 1964); Attorney
General Opinion lN-Gi)(1982).
200 Mel mua. Slme UK)
Sm Antonlo. TX. 762OW767 A municipal acnln8 ordinance which conflict8 vith or is
512/2264161 inconsistent with e’tate legislation 1~ invalid. City of Brookside
Village v. Comeau, liZI S.W.2d 790. 796 (Tex. 1982). However, state
legislation In e particular field does not automatlcally preempt that
,field from amicipal regulation; local regulation ancillary to and in
harmony with the purpose of the state leginlation is acceptable. Id.
Thur, whether a municipality may exercise zoning paver over a count-
auxiliary courthoure: located vlthln the municipality depend6 upon
reconciliation of two different, potentially conflicting legislatively
created powerr.
The coumieefone:rtl court of a county ha6 the authority to provide
auxiliary courthouse8 in the county seat. V.T.C.S. art. 1605a-5.
Honorable Fred M. Barker - Page 2 (JM-180)
51(a)(l); V.T.C.S. art. 23753’5, Il. Subsection l(a) (1) of article
1605a-5 specifically authorizea the comissionera court to provide
auxiliary courthousea
in any part of the city, town, or village
designated a8 the comty eeat, including a part of
the municipality atlcled to the municipelity after
it became the cow&p rut. but not including a
part of the munic:ipality that la outside the
county. (Emphasis mlded) .
liowever. the legfrlative history does not indicate that “in any part”
was intended to address a c:onflict with city zoning ordinances;
rather. it wan intended to indicate that the county la not limited to
the “town center . ”
Additionally, counties hwe the right of eminent domain
four the purpose of condemning and acquiring land,
right of way or tuhaement in land, private or
public . . . whew said laod. right of vay ‘or
.caeement ie neceeaal)m in the construction of . . .
courthouses . . . .
V.T.C.S. art. 3264a. Article 6702-l. section 4.302. grants counties
the right of eminent domain for road construction and maintenance
purposes within the bouadazles of ounicipalltlcs and expressly
raquircs the prior,consent of r:he municipality. No similar statutory
requirement for a muaicirv~lity’a : consent amlies tom county
co~dexmations pursuant to, .art&le :3264& Cf. Cir;-of fpler v. Smitir
~County, 246 S.l?.2d.601~(Tex. 1952); El Pasoaty v. City of El Peso,
357 &U.2d 783 (Tex.. Civ. ,App. - 81 Paeo 1962, no writ) (resolution of
conflict over condemnation by one political subdivieion of property
belonging to an equally empour~‘cd subdivision ultimately reste on the
paramount use and best interests of the public).
Zoning regulation io a recognired tool of cowaunity planning
vhich allova a municipality, in .itm legislative dircretion, to
restrict the use of property fc,c the protection of the general health,
safety, and velfare of the public. City of Broobide Village v.
Comeau. a; see V.T.C.S. nrts., 1011a through 10113 (the zoning
enebllng act ofzas which lu,thorixes building and zoning regulation
by municipalities). Became a municipal roalng ordinance vhich
conflicts with or lo inconrlrtturt with lta te lenjslation cannot stand,
City of Brookside Village v. Ctmeau, a , an orditica which defeata
the legislative authorization ``countica to ertabliah courthoueer ia
Invalid.
Honorable Fred M. Barker - P#ll;e 3 (JM-180)
Texas courts dealing with conflicts .betwean municipslitiea and
school districts employ thicl reasoning to hold that municipalities
cannot use their zoning po!n,ra totally to exclude the reasonable
location of achoo~.facilitic~ within municipal boundaries. Austin
Independent School Dietrict o,, City of Sunset Valley, 502 S.W.Zd
(Tex. 197,3); Port -Arthur Independent ,School District v. City of
Crivea , 376 S.W.2d, .330:. (Tt;:. 1964); City of Addison v. Dallas
Independent School, District, (132 S.W.2d 771 .(Tex. Civ. App. ‘- Dallas
1982. .writ ref’d n.r.c.). AlLn&~g such an exclusion would defeat the
school district’s power of end,nent domain. Austin Independent School
District v. City of Sunset Valley, B; City of Addison v. Dallas
Independent School District, eupra, Nor can the zoning ordinances of
municipalities override the eminent domain powers granted by the
legislature to other types of cntitiea. Sea Gulf, C. 6 S.P. Ry. Co. v.
m, 281, S;W.Zd 441 (Tex. Civ. App. Dallas 1955, writ ref’d
n.r.e.); Fort Worth 6 O.C. Ay. Co. v. Auunons. 215 S.W.Zd 407 (Tex.
Civ. App. -. Amarillo 1948; writ ref’d 0.r.e.).
As a practical matter, a political subdiviaion’a “immunity” from
rC munidipal zotilng ‘is limited by a rule of reasonableneaa. For example,
despite language ,in~ the -- Sunset Valle case that school districts are
absolutely immune from a city 4’ s zoning power, the supreme court
emphasized that its holding was
not that the Sch,,l District can act with
impunity . ~. . . (Yhia immunity is absolute
unless the City in #: given instance can show that
its exercise is unreasonable or arbitrary.’
502 S.W.2d ,.at ,674:; (quoting ,ulth epproval from City of Nevark v.
University of Delaware, .,3D4 -A.,:!d 347. ,349 (Del. Ch. 1973)); see City
of Addison -v. Dallas Indepe``lant School District, 632 S.w.?d at
772-773. ‘.
Similarly. in Porter v. Southwestern Public Service Co., 489
S.W.2d 361 (Tex. Civ. App. - &rillo 1972, writ ref’d n.r.e.3. the
court held that,, absent i --- su&lined challenge, a city did not usurp
the eminent domain power of a public utility by requiring it to meet
certain standards under tit:? zoning ordinances. Therefore, ve
conclude that Parker County’s IMC of land for an auxiliary courthouse
is subject to the city’s zoning ordinances only to the extent that
such ordinances do not prevent the county from reasonably locating its
auxiliary courthouse within the municipal limits of the county seat.
r However, the county must comply with city regulations regarding
the construction of its rcxiliary courthouse. Texas courts
distinguish between municipal :#,ntrol over the location of buildings
of another political subdiviair~c and control over the construction of
such buildin8a. See, e.g., %eet Valley, m, at 673. The supreme
Honorable Fred M. Barker - Pr,fe 4 (JM-180)
court in Port Arthur fndeperdent School Oiatrict v. City of Groves,
supra, held that a school district must comply with the city's
building regulations. The legislature, .by l uthoriainS the ,achool
district to locate a school Sacility vithin a ~nicipality. did~not
preempt the city's police povcc to enforce necessary health and aafety
regulatione. Port Arthur I!dependent School ~Diatrict v. City ~of
Groves, B, et 334. ~Lo Attorney General Opiuim~M~l-508.(1982),
~-office ~extended~thia"~ratlonele to counties end detelrined -.thet
couuty buildings within munic:~.palitfes are subject to municipal-fire
codes. See al~eo Attorney Geno::al Opinion WV-218 (1957).
Although particular "poli:e power" regulations vhich. in effect,
prevent the location of another political subdivision's fecilitiea may
be invalid, see. e.g., Cit of Addison v. Dallas Independent School
. Ofstrict, supra, +-
the county II authority to locate buildings in a
municipality does not abrogc.re municipal authority to protect the
public health, safety, and veXare. See City of Fargo, Case County v.
~ Harwood Township, 256 N.W.2'1 694 (N.O. 1977); Lincoln County v.
Johnson, 257 N.W.Zd 453 (S.11, 1977); Wilkinsburg-Peaa Joint Water
Authority v. Borough of ChurclG, 417 Pa. 93, 207 A.2d 905 (1965);
Pal-Uar Water Hanagement Oia~rict v. Martin County, 377 So. 2d 752
(Fla. Diet. Ct. App. 1979).
&II M M A R Y
Parker County's ure of land for sn auxiliary
courthouse within the municipal limita of the
county seat ,ia subject to the munlcipality'e
zoning ordinances only to the extent that such
ordinances do not prrrent the county from loceting
its auxiliary courthcuae within the municipality.
l'he county must comply vith municipal regulations
regardinS the couw:ruction of its auxiliary
courthouse.
LJ!!!k
Very truly
JIM
m
MATTOX
yo 8
Attorney General of Texas
TOMGREEN
First Assistant Attorney Genera,]
DAVID IL RICHARDS
Executive Assistant Attorney General
. -
Honorable Fred M. Barker - Pa&c 5 (JM-180)
Prepared by Rick Gilpin
Aaeiatent Attorney General
APPROVZD:
OPINIONCQEMITTEE
Rick Gilpin, Ghairman
Go1111 Carl
Susan Gerriaon
Jim Moellinger
Nancy Sutton