Can a Texas city council designate itself as the city's zoning board of adjustment or appoint councilmembers to that board?

A city council cannot serve as its own zoning board of adjustment

Plain-English summary

A home-rule city asked whether its governing body could adopt an ordinance naming itself as the zoning board of adjustment. The Attorney General said no. Municipal zoning power comes from state law, and a city must exercise that power in the manner the legislature prescribed.

The statutory structure treated a board of adjustment as an administrative appellate body. It heard appeals from decisions made by municipal administrative officials, including appeals by city officers, departments, boards, or bureaus affected by those decisions. Letting the city council serve as both an appellant and the adjudicator of its own appeal was inconsistent with that structure and with the due-process requirement of an impartial decision-maker.

The council also could not appoint its own members to a separate adjustment board. Section 211.008 required a five-member board appointed for two-year terms and allowed the appointing authority to remove members for cause. Texas cases had long rejected appointments in which members of the appointing body selected themselves for the offices they controlled.

The opinion did not decide whether the proposed arrangement also violated the Texas Constitution's separation-of-powers provision. The zoning statutes themselves resolved the question.

This opinion was issued in 1989. Verify current Local Government Code chapter 211, the city's charter and ordinances, and later court decisions before relying on its conclusion in a present zoning matter.

Common questions

May a city simply operate without a board of adjustment?

Section 211.008 used the word “may,” so the opinion did not definitively say that every city must create one. It noted, however, that Sams v. Dema indicated a city attempting to enforce a comprehensive zoning plan without an adjustment board could be compelled to provide one.

Why may the council serve as a zoning commission but not an adjustment board?

The legislature expressly addressed when a governing body could perform zoning-commission functions. It did not provide the same authority for a board of adjustment. A zoning commission advises before the council exercises legislative power; an adjustment board decides administrative appeals.

Could an ordinance cure the problem?

No. A municipal ordinance must conform to the state zoning statutes. The council could not use local legislation to give itself a role the statutory scheme withheld.

Why can't councilmembers sit on a separately named adjustment board?

The council controlled the appointment structure by ordinance. Under the rule stated in Ehlinger v. Clark, officials with appointment power cannot appoint themselves to the offices they fill. The opinion found that principle applicable even if another person formally exercised the appointment power under the ordinance.

Did the opinion hold that city councils and adjustment boards exercise constitutionally separate branches of power?

No. It mentioned the separation-of-powers issue but did not reach it. The statutory text, administrative-appellate role, impartiality concern, and appointment rule were enough to answer the question.

Background and statutory framework

Local Government Code section 211.007 addressed zoning commissions, which recommend district boundaries and zoning regulations. Section 211.008 authorized appointment of a five-member board of adjustment and set terms, removal procedures, alternates, meetings, minutes, and public-record requirements. Section 211.010 allowed an aggrieved person or an affected municipal office to appeal an administrative zoning decision to the adjustment board.

JM-1069 relied first on a basic limit on municipal zoning: when state zoning law directs that action be taken in a particular way, a city cannot choose another. It then distinguished legislative zoning work from the adjustment board's quasi-judicial or administrative function. Finally, it applied Texas cases barring an appointing body from selecting its own members for the offices it creates or fills.

Key citations

• Local Government Code sections 211.007, 211.008, and 211.010
• Bolton v. Sparks, 362 S.W.2d 946, 950 (Tex. 1962)
• Sams v. Dema, 316 S.W.2d 165 (Tex. Civ. App. - Houston 1958, writ ref'd n.r.e.)
• City of Dallas v. Gaechter, 524 S.W.2d 400 (Tex. Civ. App. - Dallas 1975, writ dism'd)
• Thompson v. Texas State Bd. of Medical Examiners, 570 S.W.2d 123 (Tex. Civ. App. - Tyler 1978, writ ref'd n.r.e.)
• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
• St. Louis Southwestern Ry. Co. of Texas v. Naples Indep. School Dist., 30 S.W.2d 703, 706 (Tex. Civ. App. - Texarkana 1930, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1069
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1069.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected where verified against the page images; minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

July 7, 1989

JIM MATTOX
ATTORNEY GENERAL

Honorable John F. Perry Opinion No. JM-1069

County Attorney

Hopkins County Courthouse Re: Composition of municipal
Sulphur Springs, Texas 75482 zoning board of adjustment
(RQ-1626)

Dear Mr. Perry:

You have asked whether the governing body of a home
rule city, which has adopted a comprehensive zoning plan
pursuant to the enabling statutes now codified in chapter
211 of the Local Government Code, may, by local ordinance,
designate itself to act as a zoning board of adjustment.

It has been suggested that such an arrangement would
violate article II, section 1, of the Texas Constitution,
the "separation of powers" provision, but we conclude that
it is unnecessary to reach the constitutional question. The
statute authorizing cities to create zoning boards of
adjustment itself prevents the governing body of a city from
acting as the zoning board of adjustment, in our opinion.

The power of cities to enact comprehensive zoning plans
is circumscribed. See Mixon, Texas Municipal Zoning Law,
§ 1.09 at 1-21 (issue 3-1988). In Bolton v. Sparks, 362
S.W.2d 946 (Tex. 1962), the Texas Supreme Court said:

The courts of this State have held
ordinances and amendments to ordinances
invalid where the express, mandatory
provisions of our zoning statute have not
been complied with. . . . Municipal ordin-
ances must conform to the limitations imposed
by the superior statutes, and only where the
ordinance is consistent with them, and each
of them, will it be enforced.

362 S.W.2d at 950. When the statutes conferring zoning
authority upon cities direct that action be taken in a
certain way, it may be performed in no other manner. See
Smart v. Lloyd, 370 S.W.2d 245 (Tex. Civ. App. - Texarkana
1963, no writ). And the legislature may restrict such
actions as it sees fit. See Coffee City v. Thompson, 535
S.W.2d 758 (Tex. Civ. App. - Tyler 1976, writ ref'd n.r.e.);
Lawton v. City of Austin, 404 S.W.2d 648 (Tex. Civ. App. -
Austin 1966, writ ref'd n.r.e.). Cf. City of Brookside
Village v. Comeau, 633 S.W.2d 790 (Tex.), cert. denied, 459
U.S. 1087 (1982) (no comprehensive zoning plan).

Local Government Code section 211.008 reads:

(a) The governing body of a municipality
may provide for the appointment of a board of
adjustment. In the regulations adopted under
this subchapter, the governing body may
authorize the board of adjustment, in
appropriate cases and subject to appropriate
conditions and safeguards, to make special
exceptions to the terms of the zoning
ordinance that are consistent with the
general purpose and intent of the ordinance
and in accordance with any applicable rules
contained in the ordinance.

(b) A board of adjustment must consist of
five members to be appointed for terms of two
years. The appointing authority may remove a
board member for cause on a written charge
after a public hearing. A vacancy on the
board shall be filled for the unexpired term.

(c) The governing body, by charter or
ordinance, may provide for the appointment of
four alternate board members to serve in the
absence of one or more regular members when
requested to do so by the mayor or city
manager. An alternate member serves for the
same period as a regular member and is
subject to removal in the same manner as a
regular member. A vacancy among the
alternate members is filled in the same
manner as a vacancy among the regular
members.

(d) Each case before the board of
adjustment must be heard by at least four
members.

(e) The board shall adopt rules in
accordance with any ordinance adopted under
this subchapter. Meetings of the board are
held at the call of the chairman and at other
times as determined by the board. The
chairman or acting chairman may administer
oaths and compel the attendance of witnesses.
All meetings of the board shall be open to
the public.

(f) The board shall keep minutes of its
proceedings that indicate the vote of each
member on each question or the fact that a
member is absent or fails to vote. The board
shall keep records of its examinations and
other official actions. The minutes and
records shall be filed immediately in the
board's office and are public records.
(Emphasis added.)

On the face of section 211.008,1 it does not appear
mandatory that a city appoint a board of adjustment. The
use of "may" in subsection (a) suggests that the appointment
of such a board is discretionary, although the case of Sams
v. Dema, 316 S.W.2d 165 (Tex. Civ. App. - Houston 1958, writ
ref'd n.r.e.), indicates that a city attempting to enforce a
comprehensive zoning plan without a board of adjustment may

1. The Local Government Code was enacted in 1987 as a
   nonsubstantive recodification of existing law. Acts 1987,
   70th Leg., ch. 149, § 51, at 1308. The prior law for
   chapter 211 was found in articles 1011a through 1011n,
   V.T.C.S. Section 211.008 was derived from former article
   1011g, V.T.C.S., which referred not to the "governing body
   of a municipality" but, rather, to the "local legislative
   body" of a home rule city or of a general law municipality.
   See Acts 1971, 62d Leg., ch. 742, § 1, at 2385. The courts
   have often identified zoning boards of adjustment as
   "quasi-judicial" or "administrative" bodies. See Murmur
   Corp. v. Board of Adjustment of City of Dallas, 718 S.W.2d
   790 (Tex. App. - Dallas 1986, writ ref'd n.r.e.); Board of
   Adjustment of City of San Antonio v. Nelson, 577 S.W.2d 783
   (Tex. Civ. App. - San Antonio 1979, writ ref'd n.r.e.), 584
   S.W.2d 701 (Tex. 1979); Washington v. City of Dallas, 159
   S.W.2d 579 (Tex. Civ. App. - Dallas 1942, writ ref'd); 52
   Tex. Digest 2d Zoning and Planning § 355 (1984). See also
   City of Amarillo v. Stapf, 101 S.W.2d 229 (Tex. 1937)
   (powers of board adjustment).

be mandamused to provide one. See also City of Amarillo v.
Stapf, 101 S.W.2d 229 (Tex. 1937); Mixon, Texas Municipal
Zoning Law, § 1.19 at 1-26 (issue 3-1988).2

Nonetheless, though the creation of a board of adjust-
ment may be discretionary, the word "may" in subsection (a)
of the statute cannot be construed to allow the governing
body of a city to itself act as a board of adjustment if one
is not appointed, or to appoint its own members as board
members if such a board is created. Cf. Lauterbach v. City
of Centralia, 304 P.2d 656 (Wash. 1956). When the
legislature intended that the governing body of a
municipality could exercise the zoning powers of an
appointive commission or board, it plainly so indicated --
as it did with zoning commissions. See Local Gov't Code
§ 211.007. Cf. Acts 1979, 66th Leg., ch. 754, at 1869
(source law); Coffee City v. Thompson, supra (prior law).3

2. Whether the word "may" in a statute is permissive
   or obligatory depends in great measure on the intent and
   object of the legislature in making the enactment. It means
   "must" when the intent is that the public have an interest
   in having the act done (or a claim de jure that the power be
   exercised). See Rains v. Herring, 5 S.W. 369 (Tex. 1887);
   Kleck v. Zoning Bd. of Adjustment of the City of San
   Antonio, 319 S.W.2d 406 (Tex. Civ. App. - San Antonio 1958,
   writ ref'd).

3. Section 211.007 reads in part:

(a) To exercise the powers authorized by
this subchapter, the governing body of a
home-rule municipality shall, and the
governing body of a general-law municipality
may, appoint a zoning commission. The
commission shall recommend boundaries for the
original zoning districts and appropriate
zoning regulations for each district. If the
municipality has a municipal planning
commission at the time of implementation of
this subchapter, the governing body may
appoint that commission to serve as the
zoning commission.

(Footnote Continued)

Unlike a zoning commission, which merely advises the
governing body prior to the exercise of legislative power by
the latter, a zoning board of adjustment is an administra-
tive appellate body charged with deciding appeals from the
decisions of administrative officials. Local Gov't Code
§ 211.010.4 See Mixon, Texas Municipal Zoning Law, § 8.08
at 8-12 (issue 4-1989). Under the scheme of statutory
comprehensive zoning plans, those aggrieved or affected by
an administrative officer's voidable decision (including
cities) must exhaust administrative remedies before
petitioning a court to remedy the matter. See City of
Dallas v. Gaechter, 524 S.W.2d 400 (Tex. Civ. App. - Dallas
1975, writ dism'd); cf. Austin Neighborhoods Council, Inc.
v. Board of Adjustment of City of Austin, 644 S.W.2d 560
(Tex. App. - Austin 1982, writ ref'd n.r.e.) (ratification
of appeal by city council).

The incongruity of the governing body being at the same
time an appellant and the adjudicator of its own appeal
argues strongly against any supposed legislative intent that
the governing body of a city could, at its election, act as
the legislatively contemplated board of adjustment for the
city. Cf. Attorney General Opinion H-117 (1973) (election
commissions; judges). A local ordinance purporting to

(Footnote Continued)

(e) If a general-law municipality
exercises zoning authority without the
appointment of a zoning commission, any
reference in a law to a municipal zoning
commission or planning commission means the
governing body of the municipality.
(Emphasis added.)

4. Subsection (a) of section 211.010 provides:

(a) Any of the following persons may
appeal to the board of adjustment a decision
made by an administrative official:

(1) a person aggrieved by the
decision; or

(2) any officer, department, board, or
bureau of the municipality affected by the
decision.

authorize such a role for the governing body would seemingly
fail the test of due process of law, which demands an
impartial trier of facts. See Thompson v. Texas State Bd.
of Medical Examiners, 570 S.W.2d 123 (Tex. Civ. App. - Tyler
1978, writ ref'd n.r.e.); Martinez v. Texas State Bd. of
Medical Examiners, 476 S.W.2d 400 (Tex. Civ. App. - San
Antonio 1972, writ ref'd n.r.e.).

We conclude that the governing body of a municipality
that chooses not to appoint a separate board of adjustment
is not authorized to act as a de facto board of adjustment
itself. Although subsection (a) of section 211.008 may not
mandate the establishment of such a board, it effectively
precludes the exercise of such a board's powers except in
conformity with statutory requirements.5

We also conclude that members of the governing body
cannot be appointed to serve on such a board if one is
created. However uncertain might be the proper reading of
subsection (a), there can be no doubt about the mandatory
nature of subsection (b) of section 211.008. It states that
a board of adjustment "must consist of five members to be

5. There are listed in Mixon, Texas Municipal Zoning
   Law § 8.01, several cases that apparently assumed -- without
   holding -- that entities other than boards of adjustment
   could perform functions that the enabling act delegates to
   the board. Several of them were decided prior to the Texas
   Supreme Court's decision in Bolton v. Sparks, supra. None
   directly addressed the issue here. See Cleburne Living
   Center, Inc. v. City of Cleburne, 726 F.2d 191 (5th Cir.
   1984), aff'd in part and vacated in part, 473 U.S. 432
   (1985); Fountain Gate Ministries, Inc. v. City of Plano, 654
   S.W.2d 841 (Tex. Civ. App. - Dallas 1983, writ ref'd
   n.r.e.); Slater v. City of River Oaks, 330 S.W.2d 892 (Tex.
   Civ. App. - Fort Worth 1959, no writ); Dunaway v. City of
   Austin, 290 S.W.2d 703 (Tex. Civ. App. - Austin 1956, writ
   ref'd n.r.e.); Congregation Comm. v. City Council, 287
   S.W.2d 700 (Tex. Civ. App. - Fort Worth 1956, no writ). As
   observed in 22 Texas Practice 233 (Singer, Municipal Law and
   Practice § 502), "The language of the statute seems to
   contemplate that a board [of adjustment] separate from the
   city council will be appointed."

appointed for terms of two years," and it authorizes the
appointing authority to remove appointees for cause.6

In Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928), the
Texas Supreme Court said:

It is because of the obvious incompatibility
of being both a member of a body making the
appointment and an appointee of that body
that the courts have with great unanimity
throughout the country declared that all
officers who have the appointing power are
disqualified for appointment to the offices
to which they may appoint.

8 S.W.2d at 674. Also, in St. Louis Southwestern Ry. Co. of
Texas v. Naples Indep. School Dist., 30 S.W.2d 703 (Tex.
Civ. App. - Texarkana 1930, no writ), the court held null
and void the appointment by a school board of themselves as
a board of equalization for school district taxes, saying:

The statute plainly evidences the will of
the Legislature to grant the power to the
board of trustees to select and appoint an
official board of equalization of assessments
to be composed, not of themselves, but of
other qualified and suitable persons.

30 S.W.2d at 706. See also Attorney General Opinion JM-934
(1988).

In our opinion, the governing body of a municipality
that has adopted a comprehensive zoning plan cannot --
consistent with the regulatory statutes -- act as a zoning
board of adjustment pursuant to a local ordinance, nor may

6. Subsection (b) does not specify that the governing
   body of the municipality itself must be "the appointing
   authority," but in any case "the appointing authority"
   cannot appoint members of the governing body to the board of
   adjustment. The power of the governing body of the city to
   control or alter by ordinance the conditions under which
   "the appointing authority" (whoever it may be) exercises the
   appointive power effectively eliminates members of the
   governing body as valid appointees. See Attorney General
   Opinion JM-386 (1985); 67 C.J.S. Officers § 23 at 269.

members of the governing body be appointed to serve on a
separate board of adjustment. See generally City of Pharr
v. Tippitt, 616 S.W.2d 173 (Tex. 1981).

SUMMARY

The governing body of a city cannot --
consistent with the statutes regulating
zoning matters -- act as a zoning board of
adjustment pursuant to a local ordinance, nor
may members of the governing body be
appointed to serve on a separate board of
adjustment.

Very truly yours,

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 Bruce Youngblood
Assistant Attorney General