Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 27, 2009
Mr. Robert Scott Opinion No. GA-0697
Commissioner of Education
Texas Education Agency Re: Authority of a home rule city to enforce land
1701 North Congress Avenue development regulations against an independent
Austin, Texas 78701-1494 school district for the purposes ofaesthetics and the
maintenance of property values (RQ-0741-GA)
Dear Mr. Scott:
You ask whether a home rule city may enforce certain provisions of its land development
regulations against an independent school district. 1 Your question is based upon a letter you received
from the Mansfield Independent School District (the "District") objecting to certain requirements
imposed upon the District by the City of Mansfield, a home rule municipality (the "City").2
Specifically, the District questions the validity ofthe following City zoning ordinance provisions as
they apply to the District:
1. set back and height regulations;
2. community design standards;
3. sign standards;
4. landscaping and screening requirements;
5. supplemental requirements for screening of mechanical
equipment and service areas;
6. general provisions for fences and free standing walls; and
7. fines for violation of such ordinances.
IRequest Letter (available at http://www.texasattorneygenera1.gov).
2See Letter from Meridith Hayes, Abernathy, Roeder, Boyd & Joplin, P.C., to Robert Scott, Commissioner of
Education (Sept. 5, 2008) (attachment to Request Letter) [hereinafter District Letter].
Mr. Robert Scott - Page 2 (GA-0697)
District Letter at 3-5. The District suggests that these regulations serve only to protect "the aesthetic
appearance of and property values of' commercial property in the city. Id. at 1. 3
The application of municipal building ordinances to school district property within a
municipality was first considered by the Texas Supreme Court in 1964. The court, while
acknowledging that an independent school district is a creature of the state, declined to classify its
property as "state property." Port Arthur Indep. Sch. Dist. v. City ofGroves, 376 S.W.2d 330, 333
(Tex. 1964). Rather, "[t]he Legislature, in providing that local school boards shall contract for the
erection ofschool buildings and superintend the construction ofsame, made no provision whatsoever
that they should regulate, supervise, or control in any manner the building of school buildings." Id.
The court concluded that a city, "in performing its duties as delegated to it by the state, does not
usurp the authority and responsibility ofthe school district in the realm ofeducation by requiring the
school buildings to meet certain minimum standards of construction any more than it usurps the
control and management of individuals and private corporations over their property and affairs by
making them meet those same standards." Id. at 334. A subsequent decision added the caveat that
a municipality may not in the exercise of its authority wholly exclude from its boundaries a facility
operated by an independent school district. Austin Indep. Sch. Dist. v. City ofSunset Valley, 502
S.W.2d 670,673 (Tex. 1973). The court in City ofSunset Valley noted that City ofGroves "turned
on the police power ofthe city to enforce necessary health and safety regulations," whereas the issue
before it in the instant case was "a zoning ordinance of the City which wholly excludes the school
facilities in issue." Id. See also City ofAddison v. Dallas Indep. Sch. Dist.,632 ·S.W.2d 771, 773
(Tex. App.-Dallas 1982, writ refd n.r.e.) (school district may place any facility within an area
zoned residential and is generally exempt from a city's location-based requirements as long as the
district is not acting unreasonably or arbitrarily); Tex. Att'y Gen. Ope No. JM-514 (1986) at 2
(municipality may not use zoning power to prevent school district from converting classroom facility
to administrative facility).
Courts reviewing municipal ordinances begin with a presumption of validity, wherein the
standard of review is abuse of discretion. City ofBrookside Village v. Comeau, 633 S.W.2d 790,
792-93 (Tex. 1982). See also Price v.City ofJunction, 711 F.2d 582,588 (5th Cir. 1983); City of
Lucasv. N Tex. Mun. Water Dist., 724 S.W.2d 811,820 (Tex. App.-Dallas 1986, writrefdn.r.e.).
Moreover, the reasonableness of an ordinance is a question of law. City ofLucas, 724 S.W.2d at
820.
The District takes particular issue with the City's reliance upon aesthetics and the
maintenance ofproperty values to uphold the regulations in question. See District Letter at 1, 3. But
those considerations have been approved by Texas courts since 1940. In Connor v. City of
University Park, 142 S.W.2d 706, 712 (Tex. Civ. App.-Dallas 1940, writrefd), the court said that
"in zoning, the aesthetic consideration is not to be ignored. Harmonious appearance,
appropriateness, good taste and beauty displayed in a neighborhood not only tend to conserve the
3F or. purposes of this opinion, we accept the District's characterization of the referenced regulations as
protective of "the aesthetic appearance of and property values of' property within the municipality.
Mr. Robert Scott - Page 3 (GA-0697)
value of property, but foster contentment and happiness among homeowners." Subsequent cases
have focused upon the same considerations. See, e.g., City ofHouston v. Johnny Frank's Auto Parts
Co., 480 S.W.2d 774, 780 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ refd n.r.e.) (quoting
language from Connor, 142 S.W.2d at 712); City of Pharr v. Pena, 853 S.W.2d 56, 61 (Tex.
App.-Corpus Christi 1993, writ denied) (considerations of aesthetics as well as surrounding
property values "represent a legitimate goal [and] were substantially related to the public welfare").
In the most recent case, the court said that a restriction on off-premise signs "enhances the aesthetic
appearance and economic prospects of the community." Eller Media Co. v. City ofHouston, 101
S.W.3d 668, 675 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).
Moreover, zoning ordinances and land development standards constitute a portion of a
municipality's statutory police power. Chapter 211 of the Local Government Code provides the
basis for municipal zoning authority. The powers granted therein "are for the purpose ofpromoting
the public health, safety, morals, or general welfare and protecting and preserving places and areas
of historical, cultural, or architectural importance and significance." TEX. Lac. GOV'T CODE ANN.
§ 211.001 (Vernon 2008).4 Zoning ordinances include, inter alia, regulation ofthe height and size
of buildings and other structures. Id. § 211.003(a)(1); see also ide §·216.901(a) (home rule city may
regulate signs). Another provision permits the governing body of a municipality to divide the city
into districts and, within each district, to "regulate the erection,. construction, reconstruction,
alteration, repair, or use ofbuildings, other structures, or land." Id. § 211.005(a). Zoning regulations
"shall be adopted with reasonable consideration, among other things, for the character ofeach district
and its peculiar suitability for particular uses, with a view of conserving the value of buildings and
encouraging the most appropriate use ofland in the municipality." Id. § 211.005(b). Taken together,
the foregoing statutes and judicial decisions make clear that the City may enforce reasonable zoning
and building ordinances against the District on the bases of aesthetics and the maintenance of
property values. Sections 54.004 and 211.005 ofthe Local G~vernment Code establish the primacy
of a municipality in enforcing its building and zoning regulations. In addition, the various cases
upholding considerations of aesthetics and the maintenance of property values as sufficient
underpinnings for such laws remove substantial obstacles to the implementation ofthose regulations.
Finally, the Texas Supreme Court's decision in City ofGroves indicates that, in the area of building
regulation, a municipality may enforce its reasonable ordinances against an independent school
district.
We conclude that a home rule city may enforce its reasonable land development regulations
and ordinances against an independent school district for the purposes of aesthetics and the
maintenance of property values.
4Under another portion of the Local Government Code, "[a] home rule municipality may enforce ordinances
necessary to protect health, life, and property and to preserve the good government, order, and security of the
municipality and its inhabitants." TEX. Lac. GOV'T CODE ANN. § 54.004 (Vernon 2008).
Mr. Robert Scott - Page 4 (GA-0697)
SUMMARY
A home rule city may enforce its reasonable land development
regulations and ordinances against an independent school district for
the purposes of aesthetics and the maintenance of property values.
Very truly yours,
``BOTT
Attorney General of Texas
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee