Who can sign a protest against a proposed zoning change in Texas, and does their property have to touch the rezoned area?

Texas AG Opinion JM-1014: Who Can Protest a Zoning Change in Texas?

Plain-English summary

Texas gives neighbors a real lever when a city proposes to rezone nearby land. If enough of them file a written protest, the city council cannot approve the change on a simple majority; it needs a three-fourths supermajority. The question a state representative brought to the Attorney General was about exactly who counts as a qualifying protester, because the statute's wording is easy to misread.

Section 211.006(d) of the Local Government Code says a protest works if it is signed by the owners of at least 20 percent of either (1) the land covered by the proposed change, or (2) the land "immediately adjoining" the change area "and extending 200 feet" from it. Someone could read category (2) to mean that only a property physically touching the rezoned parcel counts, and maybe only if that property runs the full 200 feet. The representative asked whether that boundary-sharing reading was correct.

The Attorney General said no. The "immediately adjoining and extending 200 feet" language describes the protest zone, a 200-foot band around the change area, not a test that each individual lot has to pass. So any owner whose property lies within 200 feet of the proposed change can sign the protest, whether or not that property touches the change area and whether or not it stretches the full 200 feet. The Attorney General leaned on the one court decision to interpret this language, Strong v. City of Grand Prairie, which read the notice and protest provisions together and treated the class of protesters as the owners of real property lying within 200 feet, drawn from the city's tax roll. The Legislature later amended the statute in response to Strong, but only to fix how streets and alleys factor into the math; it left the who-can-protest holding alone. When lawmakers amend a statute in one respect and leave a court's construction untouched, courts treat that as at least tacit acceptance, so Strong remains the governing reading.

The second question was more technical. Because a later amendment (now section 211.006(e)) requires the area of streets and alleys to be counted in the land-area computation, and because an owner of land abutting a dedicated street or alley usually owns the fee title out to the center line (subject to the public's easement), the representative asked whether a city could allocate half of an adjacent street or alley to a protest-area property when tallying who controls the streets and alleys. The Attorney General said yes, but with limits: a city may make that half-street allocation only when the abutting landowner actually holds fee title to the center of the street or alley, and only if the allocation follows the demarcation of the center line. Where the city itself owns the street or alley in fee, the abutting owner does not get that allocation.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The municipal zoning-protest mechanism is still in chapter 211 of the Local Government Code, including the 20-percent protest trigger and the three-fourths supermajority requirement, and the street-and-alley computation rule. But the section wording, and the older article 1011e/1011f statutes this opinion traces, have been amended and recodified over the years, and courts have continued to address zoning-protest questions. A neighbor, developer, or city dealing with a rezoning protest today should read the current chapter 211 text and recent case law rather than rely on the specific 1989 section numbers and the older articles cited here.

Who this opinion affected (as of 1989)

Neighboring property owners: The opinion confirmed that anyone owning property within 200 feet of a proposed zoning change could join a protest, without needing to share a boundary with the rezoned land.

Cities and their councils: The opinion clarified when a valid protest forces a three-fourths supermajority vote, and how streets and alleys count in the protest math, including the narrow circumstances for allocating half a street to an abutting owner.

Developers and rezoning applicants: The opinion told them the pool of potential protesters was the full 200-foot band, which affects how hard a rezoning may be to pass.

Common questions

Do I have to own land that touches the rezoned property to sign a zoning protest?
No. In this opinion the Attorney General concluded that any owner of property within 200 feet of the proposed change area can sign a protest under section 211.006(d), whether or not the property shares a boundary with the change area or extends the full 200 feet.

What does a valid protest actually do?
If owners of at least 20 percent of the qualifying area file a written protest, the proposed zoning change must get the affirmative vote of at least three-fourths of all members of the governing body to take effect, instead of a simple majority.

Does section 211.006(d) give neighbors "standing" and shut everyone else out?
No. As the opinion noted, the provision does not preclude others from voicing objections; it sets the condition that triggers the three-fourths supermajority requirement when qualifying owners protest.

Can a city credit half of an adjacent street or alley to a protesting property?
Only in a narrow case. Because streets and alleys are included in the land-area computation, a city may allocate half of an adjacent street or alley to an abutting property only when that owner holds fee title to the center of the street or alley and the allocation follows the center line.

Background and statutory framework

Section 211.007(c) requires written notice of proposed zoning changes to each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which the change is proposed. Section 211.006(d) provides that a protested change must receive the affirmative vote of at least three-fourths of all members of the governing body to take effect, and that the protest must be written and signed by the owners of at least 20 percent of either (1) the area of the lots or land covered by the proposed change, or (2) the area of the lots or land immediately adjoining the change area and extending 200 feet from that area. The representative asked whether category (2) requires a shared boundary with the change area (and if so, whether the adjacent property must extend 200 feet).

The Attorney General concluded that section 211.006(d) includes an owner of property within 200 feet of the change area whether or not the protesting owner's property shares a boundary with, or extends 200 feet from, that area. Before the Local Government Code, the substance of section 211.006(d) was in article 1011e, V.T.C.S. (enacted 1927, amended 1971 to simplify the language), and the predecessor of section 211.007(c) was article 1011f. A careful reading of section 211.006(d)(2) shows the phrase "immediately adjoining ... and extending 200 feet" describes the area from which owners may sign a protest, not the lots eligible to be counted, so it includes owners of land within the 200-foot band around the change area.

That reading is supported by the only case to construe the language, Strong v. City of Grand Prairie, 679 S.W.2d 767 (Tex. App.-Fort Worth 1984, no writ), which read articles 1011e and 1011f in harmony and equated the class of owners entitled to notice with the class entitled to protest, describing them as the owners of real property lying within 200 feet of the property on which the change is proposed, as determined from the last approved city tax roll (and holding streets are excluded from the base area because street right-of-way is not on the tax rolls). The court placed no emphasis on the conjunctive "and" in "immediately adjoining ... and extending 200 feet," so an owner within 200 feet may protest even without a shared boundary or full 200-foot extension.

Because a statute is the creation of the Legislature, an unacceptable judicial construction can be cured by amendment (Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968)), and when the Legislature amends a statute courts presume it was aware of the courts' construction (Warthan v. Haynes, 288 S.W.2d 481, 484 (Tex. 1956)). A failure to amend to avoid a particular construction is significant, especially where the statute was amended in other respects (Moss v. Gibbs, 370 S.W.2d 452 (Tex. 1963); San Antonio Union Junior College Dist. v. Daniel, 206 S.W.2d 995 (Tex. 1948)); such inaction indicates either legislative approval of the construction or dissatisfaction too weak to prompt action (Moss v. Gibbs). The Legislature reacted to Strong only by adding language (now section 211.006(e)) that streets and alleys are included in computing the percentage of land area, leaving the eligibility-to-protest holding undisturbed. Strong therefore remains the most recent and relevant interpretation, and the provision authorizes protests signed by owners of any property within 200 feet of the change area regardless of shared boundary or extension.

On the second question, the representative pointed to Attorney General Opinion JM-676 (1987), which read the street-and-alley amendment to require streets and alleys to be included in computing either the change-area land or the adjoining-and-extending-200-feet land, and asked whether a city may allocate one-half of an adjacent street or alley to a protest-area property for determining who controls the streets and alleys. Assuming the question concerned property abutting a street or alley, the Attorney General explained that JM-676 addressed whether the amendment distinguished privately owned dedicated streets and alleys from city-owned ones, and applied the general rule that, unless the conveyance says otherwise, an owner of land abutting a dedicated street or alley holds fee title to the center, subject to a public easement (a city may also hold fee simple by grant, purchase, or condemnation). Subsection (d) requires a protest signed by owners of at least 20 percent of the specified areas, and subsection (e) requires streets and alleys to be included in that computation, so subsection (d) authorizes the owners of streets and alleys in the protest area (including cities) to sign the protest. Reading these together, the Attorney General concluded section 211.006 authorizes a municipality to allocate the area of a street or alley in the manner described only when the adjacent landowner holds fee title to the center of the street or alley, and only if the allocation conforms to the demarcation of the center line.

Citations

Statutory authority:

• Local Gov't Code § 211.006(d) (protest trigger, three-fourths supermajority, 20-percent areas); § 211.006(e) (streets and alleys included in the land-area computation); § 211.007(c) (notice to owners within 200 feet)
• Tex. Rev. Civ. Stat. art. 1011e (predecessor of § 211.006); art. 1011f (predecessor of § 211.007(c))

Cases:

• Strong v. City of Grand Prairie, 679 S.W.2d 767 (Tex. App.-Fort Worth 1984, no writ) (class of owners entitled to protest; streets excluded from base area)
• Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968) (legislative remedy for an unacceptable construction is amendment)
• Warthan v. Haynes, 288 S.W.2d 481 (Tex. 1956) (Legislature presumed aware of judicial construction when it amends)
• Moss v. Gibbs, 370 S.W.2d 452 (Tex. 1963) (significance of failure to amend to avoid a construction)
• San Antonio Union Junior College Dist. v. Daniel, 206 S.W.2d 995 (Tex. 1948) (same)

Related opinions:

• Attorney General Opinion JM-676 (1987)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1014
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1014.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. Garbled case names have been restored to their verified forms, and a badly scanned internal block quotation is reproduced as best read.

THE ATTORNEY GENERAL OF TEXAS

February 7, 1989

Honorable George Pierce
Chairman
Committee on Urban Affairs
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78769

Opinion No. JM-1014

Re: Procedures for protesting a proposed change in a zoning classification (RQ-1472)

Dear Representative Pierce:

You request our opinion concerning the proper interpretation of sections 211.006 and 211.007 of the Local Government Code as they relate to protests of proposed zoning changes. Section 211.007(c) requires written notice of proposed zoning changes to be sent to "each owner, as indicated by the most recently approved municipal tax roll, of real property within 200 feet of the property on which the change in [zoning] classification is proposed." Section 211.006(d) provides the following:

(d) If a proposed change to a regulation or boundary is protested in accordance with this subsection, the proposed change must receive, in order to take effect, the affirmative vote of at least three-fourths of all members of the governing body. The protest must be written and signed by the owners of at least 20 percent of either:

(1) the area of the lots or land covered by the proposed change; or

(2) the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area. (Emphasis added.)

You ask whether section 211.006(d)(2) includes owners of property within 200 feet of the area covered by the proposed zoning change only if their property shares a boundary with the property covered by the proposed change.[1] If it requires a common boundary, you also ask whether the adjacent property would have to extend 200 feet to be included in the protest area.

We conclude that section 211.006(d) of the Local Government Code includes an owner of property within 200 feet of the area covered by a proposed change in zoning classification, whether or not the property of the protesting landowner shares a boundary with the area covered by the proposed change or extends a distance of 200 feet from such area.

Prior to the enactment of the Local Government Code, the substance of section 211.006(d) was contained in article 1011e, V.T.C.S. Article 1011e was enacted by the 40th Legislature in 1927. Acts 1927, 40th Leg., ch. 283, § 5, at 424, 425. The predecessor of section 211.007(c), V.T.C.S. article 1011f, was also enacted in 1927. Id. § 6 at 425. As originally enacted, article 1011e provided for the submission of written protests to proposed zoning changes by

the owners of 20 per cent or more either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending 200 feet therefrom, or of those directly opposite thereto extending 200 feet from the street frontage of such opposite lots . . . .

Article 1011f required notice in terms virtually identical to section 211.007(c).

Article 1011e was amended in 1971 to provide that written protests may be submitted by the owners of 20 percent of either the area covered by the proposed zoning change or "the area of the lots or land immediately adjoining the same and extending 200 feet therefrom." Acts 1971, 62d Leg., ch. 942, § 1, at 2864. The amendment apparently was an attempt to simplify the language of the statute, but it is unclear whether the legislature intended to change the meaning of the statute. This language was preserved in section 211.006(d)(2) of the Local Government Code.

A careful reading of section 211.006(d)(2) reveals that the phrase "immediately adjoining . . . and extending 200 feet" describes the area from which landowners are permitted to sign a written zoning protest. The phrase does not describe the lots or land eligible to be included in the protest area. Thus, the appropriate reading of section 211.006(d)(2) is that it includes owners of lots or land within the area "immediately adjoining the area covered by the proposed change and extending 200 feet from" the area covered by the proposed change.

Our reading of this provision is supported by the only case to construe the language of what is now section 211.006(d)(2). In Strong v. City of Grand Prairie, 679 S.W.2d 767 (Tex. App. - Fort Worth 1984, no writ), the court read articles 1011e and 1011f in harmony, equating the class of landowners entitled to notice under article 1011f with the class of owners specified in article 1011e:

The trial court also concluded as a matter of law that under art. 1011e those who are entitled to sign zoning change protests are the same as those entitled to notice by art. 1011f. Article 1011f requires written notice of all public hearings on proposed zoning changes before the city's zoning commission to owners 'of real property lying within 200 feet of the property on which the change in zoning classification is proposed . . . as the ownership appears on the last approved city tax roll.' TEX.REV.CIV.STAT.ANN. art. 1011f (Vernon Supp.1984). The trial court, also as a matter of law, concluded that in determining the base area (or denominator) in which the protest area (or numerator) is 20%, the area of streets is excluded.

We hold that both of these conclusions of law are correct, and that a reading of arts. 1011e and 1011f [shows that the] intent of the legislature was to permit written protests of proposed zoning changes by the owners of 'real property' lying within 200 feet of the property on which the zoning change is proposed, which ownership is determined from the last approved city tax roll.

Since street right-of-way is not included on the tax rolls, the area of the streets was properly excluded. (Emphasis added and citations omitted.)

679 S.W.2d at 770. The court's construction of article 1011e places no emphasis on the conjunctive "and" in the phrase "immediately adjoining . . . and extending 200 feet therefrom" and thus means that an owner of property within 200 feet of the area included in a proposed zoning change is entitled to sign a zoning protest even though his property does not share a boundary with the area covered by the proposed change or extend the entire 200 feet from the area covered by the proposed change.

A statute is the creation of the legislature, and if an interpretation of a statute by the courts is unacceptable to the legislature, the simple remedy is to amend the statute. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968). Thus, when the legislature amends a statute, the courts presume that the legislature was fully aware of the construction given the statute by the courts at the time of the amendment. See Warthan v. Haynes, 288 S.W.2d 481, 484 (Tex. 1956). The failure of the legislature to amend the statute to avoid a particular construction placed on a provision of the statute is considered significant, especially if the statute has been amended in other places. See, e.g., Moss v. Gibbs, 370 S.W.2d 452 (Tex. 1963); San Antonio Union Junior College Dist. v. Daniel, 206 S.W.2d 995 (Tex. 1948). In such instances, the legislature's inaction indicates either legislative approval of the construction or general dissatisfaction of insufficient strength to impel legislative action. Moss v. Gibbs, supra.

The legislature reacted to the Strong decision by adding the following language to article 1011e: "In computing the percentage of land area, the area of streets and alleys shall be included in the computation." Acts 1985, 69th Leg., ch. 201, § 1, at 788, 789. The essence of this provision is now found in section 211.006(e) of the Local Government Code. The amendment did not disturb the court's holding concerning a property owner's eligibility to sign zoning protests, and the statute has not been subsequently amended to avoid that construction. We can therefore treat these events as constituting either the legislature's tacit approval of Strong in that regard or as an indication of insufficient legislative discontent with that aspect of the case to warrant legislative response. In either event, Strong remains the most recent and relevant interpretation of section 211.006(d), and for that reason we conclude that the provision authorizes the submission of written protests to proposed changes in zoning classifications signed by the owners of any property within 200 feet of the area covered by the change, whether or not the properties of the protesting landowners share a boundary with or extend a distance of 200 feet from the area covered by the proposed change.

Your next question concerns the language added to article 1011e following Strong. It is prompted by the following statement in Attorney General Opinion JM-676 (1987):

[T]he legislature clearly intended article 1011e(a) [now section 211.006(e) of the Local Government Code] 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.

Your question is whether a city may allocate one-half of the area of any adjacent street or alley to a property eligible to participate in a zoning protest for purposes of determining who controls the streets and alleys with regard to such a protest.

We will assume for the purposes of this opinion that your question refers to property within a zoning protest area that abuts a street or alley. See Black's Law Dictionary 11 (5th ed. 1979) ("abut" means, inter alia, to touch, join at a border, or border on; "abutting" implies a closer proximity than "adjacent," no intervening land).

The issue in Attorney General Opinion JM-676 was whether the amendment to article 1011e created a distinction between (1) streets and alleys held in fee simple by protesting landowners and dedicated for use as public easements and (2) streets and alleys owned by a city in fee simple. The concern was that the statute excluded privately owned streets and alleys from the computation of land area required by article 1011e. The opinion cited several authorities for the general rule that, unless otherwise declared in the conveyance, an owner of land abutting a street or alley which has been dedicated to the public holds the fee title to the center of the street or alley, subject to a public easement. See also 43 Tex. Jur. 3d, Highways and Streets § 116. Municipalities may also acquire fee simple to streets and alleys, either through grant, purchase, or condemnation. The purpose of the amendment to article 1011e, we noted, was to simplify the computation of the percentage of land area, a task made more difficult and costly as a result of the Strong case. We therefore concluded the legislature intended no further complications by excluding privately owned streets and alleys from the computation.

Your inquiry is answered by the language of subsections (d) and (e) of section 211.006 of the Local Government Code and by Attorney General Opinion JM-676. Subsection (d) is quite clear in its requirement that a written zoning protest be signed by the owners of at least 20 percent of either of the areas specified in the provision. Subsection (e) requires streets and alleys to be included in the computation of the percentage of land area under subsection (d). Subsection (d) thus authorizes the owners of streets and alleys in the protest area, including cities, to sign the zoning protest. See Geary, Davenport, and Minick, Annual Survey of Texas Law: Local Government Law, 40 Sw.L.J. 727, 732-733 (1986).

Attorney General Opinion JM-676 makes it clear that, as a general matter, an owner of land abutting a street or alley holds fee title to the center of the street or alley, unless otherwise provided in the conveyance to the landowner. By including the area of streets and alleys in the section 211.006(d) computation, the legislature expressed its intention not only to simplify the computation, but to give the owners of land supporting streets and alleys in the protest area greater say in the rezoning process. Accordingly, we conclude that section 211.006 of the Local Government Code authorizes a municipality to allocate the area of a street or alley in the manner you describe only when the adjacent landowner holds fee title to the center of the street or alley and only if the allocation conforms to the demarcation of the center line of the street or alley.

SUMMARY

An owner of property within 200 feet of the area covered by a proposed change in zoning classification is entitled to sign a written zoning protest under section 211.006(d) of the Local Government Code, whether or not the property of the protesting landowner shares a boundary with the area covered by the proposed change or extends a distance of 200 feet from such area. Section 211.006 authorizes a municipality to allocate one-half of the area of a street or alley to abutting property included within the zoning protest area only if the owner of the abutting property holds fee title to the center of the street or alley and if the allocation conforms to the demarcation of the center line of the street or alley.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Steve Aragon
Assistant Attorney General

Footnotes

[1] You ask about "standing" to make a zoning protest. It should be noted that section 211.006(d) does not grant standing in the sense that it precludes persons other than those listed in the statute from registering their objections to the proposed change in zoning classification. Rather, it provides that upon the submission of a written protest meeting the terms of the statute, the amendment to the zoning regulation must receive a favorable vote of three-fourths of all members of the legislative body of the municipality to become effective.