Untitled Texas Attorney General Opinion

c
The Attorney General of ,Texas
December 30, 1983
JIM MATTOX
Attorney General
Supreme Court Building Honorable Wilhelmina Delco Opinion No. JM-117
P. 0. BOX 12546 Chairman
Austin, TX. 76711. 2546 Committee on Higher Education RS: Whether chapter 764 of the
5121475-2501
Texas House of Representatives Sixty-eighth Legislature exempts
Telex 9101674-1367
Telecopier 512/475-0266
P. 0. Box 2910 buildings, structures, and land
Austin, Texas 78769 under the control of a state
agency from zoning by cities
714 Jackson, Suite 700
Dallas, TX. 75202.4506
Dear Representative Delco:
2141742-6944
You ask our opinion aa to whether all buildings, structures, and
4624 Alberta Ave., Suite 160 land under the control of federal and state agencies are exempt from
El Paso, TX. 79905-2793 municipal zoning or whether only places and areas of architectural
9151533.3464
significance are so exempt. We do not believe that the exemption in
section 2 of chapter 764 of the Sixty-eighth Legislature is limited to
P
#Jl Texas. Suite 700 only places and areas of architectural significance.
Houston, TX. 77002.3111
7131223-5666 The building and zoning ordinances of cities are an exercise of
police power delegated to cities by the state for protection of
606 Broadway, Suite 312
health, safety, comfort, and welfare of the public. Cities possess no
Lubbock, TX. 79401.3479
inherent Dower of aoninn and are limited to the Dower conferred on
&M/747-5236 them by statute. Fort Wirth & D.C. Railway Co. v.'Ammons, 215 S.W.2d
407, 409 (Tex. Civ. App. - Amarillo 1948, writ ref'd n.r.e.).
4309 N. Tenth, Suite 6
McAllen, TX. 76501-1665
Articles lOlla through lOllj, V.T.C.S., enacted by chapter 283,
5121662.4547 Acts of the Fortieth Legislature in 1927, constitute the general
zoning enabling act of this state and authorize build#ng and zoning
ordinances by all cities, including home rule cities. See city of
200 Main Plaza, Suite 400
Bellaire V. Lamkin, 317 S.W.2d 43, 44 (Tex. 1958); Porter
San Antonio. TX. 76205-2797
5121225-4191
Southwestern PubllFService Co., 489 S.W.2d 361, 364 (Tex. CG.- 4pp. -
Amarillo 1972, writ ref'd n.r.e.); Fort Worth & D.C. Railway Co. v.
Ammons. 215 S.W.2d 407. 4101 (Tex. Civ. App. - Amarillo 1948, writ
An Equal Opportunity/ ref'd h.r.e.); 63 Tex. -Jur. 2d Zoning, Q5 at 744; -cf. V.T.C.S. art.
Affirmative Action Employer 1175. subdivision 26.
1. Chapter 283, Acts of the 40th Legislature, 1927, is not a
part of chapter 4, Title 28, Revised Civil Statutes of Texas, 1925,
but instead was enacted as non-amendatory law and codified by Vernons
as Articles lOlla-1011j. Cf. Wooldrige V. Folsom. 564 S.W.2d 471
(Tex. Civ. App. - Dallas 1978,no writ).
p. 494
\
Honorable Wilhelmina Delco - Page 2 (JM-117)
?
Section 1 of chapter 764 of the Sixty-eighth Legislature,
re-enacted and amended section 1 of chapter 283, codified as article
lOlla, to read as follows:
Sec. 1. For the purpose of promoting health,
safety, morals, and for the protection and
preservation of places and areas of historical,
cultural, or architectural importance and
significance, or the general welfare of the
community, the legislative body of cities and
incorporated villages is hereby empowered to
regulate and restrict the height, number of
stories, and size of buildings, and other
structures, the percentage of lot that may be
occupied, the size of the yard, courts, and other
open spaces, the density of population, and the
location and use of buildings, structures, and
land for trade, industry, residence, or other
purpose; and, in the case of designated places and
areas of historic, cultural, or architectural
importance and significance, to regulate and
restrict the construction, alteration,
reconstruction, or razing of buildings and other
structures. ?
The only change to article lOlla as re-enacted by chapter 764 IS
the addition of places and areas of architectural significance to the
enumerated places and areas where construction, alteration,
reconstruction, or razing of buildings may be regulated.
Section 2 of chapter 764 provides that the "provisions of this
Act shall not apply to buildings, structures, or land under the
control, administration, or jurisdiction of any Federal or State
Agency."
It is fundamental that construction of a statute must be
consistent with legislative intent, and a statute's language is the
best evidence of that intent. Also, in determining legislative
intent, it is presumed that legislation is enacted with knowledge of
existing common law and statutes. Railroad Commission of Texas V.
Miller, 434 S.W.2d 670, 672 (Tex. 1968); State v. Anderson, 26 S.W.2d
174, 178 (Tex. 1930); Sabine Pilots Association v. Lykes Brothers
Steamship, Inc., 346 S.W.2d 166, 169 (Tex. Civ. App. - Austin 1961, no
writ).
We believe that a majority of decisions in this and other
jurisdictions hold that a state agency is exempt from all local zoning
ordinances. In exercising the police powers delegated to it by zoning
statutes, a city exercises the powers of the state government within
p. 495
,
Konorable Wilhelmina Delco - Page 3 (JM-117)
the city. A legislative grant of police power to a city is not
considered a surrender of the legislature's right to regulate the
state's own property which may be located within a city, unless the
statutes clearly show that the legislature intended to waive state
immunity from local regulation. See Port Arthur Independent School
District v. City of Groves, 376 S.%d 330, 332 (Tex. 1964); Comment,
The Applicability of Zoning Ordinances to Government Land Use, 39 Tex.
L. Rev. 316, 325 (1961). Cf. Attorney General Opinions MW-508 (1982);
M-182 (1968); C-690 (1966);-301 (1964); V-977 (1949). See generally
2 Anderson, American Law of Zoning (2nd ed.), 912.06; 8 McQuillin,
Municipal Corporations 37 (3rd ed. 1976 rev.), 525.15. But cf. Austin
Independent School District v. City of Sunset Valley, 502 S.W.2d 670,
672 (Tex. 1973).
Further, it is a well recognized principle of Texas law that
charters and ordinances of home rule cities must conform to the
constitution and general laws of this state. Article XI, section 5,
of the Texas Constitution, and article 1165, V.T.C.S., provide that no
charter or ordinance of such cities may contain any provision
inconsistent with the constitution and general laws enacted by the
legislature. McCutcheon v. Wozencraft, 294 S.W. 1105 (Tex. 1927);
City of Beaumont v. Gulf States Utilities Co., 163 S.W.Zd 426, 429
(Tex. Civ. App. - Beaumont 1942, writ ref'd w.o.m.). Since the Texas
Constitution,prohibits home rule city regulation which conflicts with
programs and activities of the state and its agencies that are
undertaken under constitutional or statutory authority, a state agency
delegated by law the responsibility for regulation and control of
state property is not subject to the police power of such a city. See
City of Dallas v. Southwest Airlines Co., 494 F.2d 773, 777 (5th Cir.
1974); Beverly v. City of Dallas, 292 S.W.2d 172, 176 (Tex. Civ. App.
- El Paso 1956, writ ref'd n.r.e.): Attorney General Opinions M-182
(1968); C-690 (i966); V-977 (1949).
The doctrine of federal supremacy generally immunizes federal
land from local regulations. Under clause 2 of article VI, of the
United States Constitution, a city ordinance, even if based on the
valid oolice oowers of the state. must vield when it is in conflict
with federal law. United States ;. City of Chester, 144 F.2d 415, 420
(3rd Clr. 1944); Town of Groton v. Laird, 353 F. Supp. 344, 350 (Conn.
1972). See generally Ellickson 8 Tarlock, Land Use Controls, ch. 9,
p. 905 (1981).
Section 2 of chapter 764 does not amend chapter 283 of the
Fortieth Legislature. although the language submitted to the
legislature is underlined as if it were intended to be new language
added to existing law. There is a question whether the words
"provisions of this Act" in section 2 are intended to apply to chapter
283 of the Fortieth Legislature (codified as article lOlla-1011j) or
to chapter 764. Either way, section 2 is law, and we believe it
p. 496
Honorable Wilhelmina Delco - Page 4 (JM-117)
cannot apply to less than the re-enactment of article lOlla by chapter
764, which is a re-enactment of the grant of zoning power to the
cities.
Accordingly, we conclude that the plain language of section 2
incorporates into statutory law the fact that the zoning power of the
cities does not apply to buildings, structures, or land under the
control, administration, or jurisdiction of any federal or state
agency.
SUMMARY
Chapter 764 of the Sixty-eighth Legislature
exempts all buildings, structures, and land under
the control of federal or state agencies from
municipal zoning.
I
JIM MATTOX I
Attorney General of Texas ?
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
-.
p. 497