Untitled Texas Attorney General Opinion ( 1987 )

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 or repealed.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?
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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