Case Information

*1 The Attorney General of Texas Lily 5, 1984 JIM MATTOX

Attorney General Booorable Fred M. Ba,xker

Suprem cwrl SulldlnQ opinion, no. ~~-180 P. 0. Box 11548 Parker county Attorcey Auslln. TX. 7S71 I. 2!m County Courthouse Be: Whether an auxiliary county 512l4752661 Weatherford. Texar 76086 courthoure 10 subject to city Telex 81a674.1367 zoning ordinances telecopier 612l476.0266 Dear Mr. Barker: 714 Jackson. Sulle 700 Dallas. TX. 75202ao6

You ask whether Parker County’s uee of a tract of land for an 214i742+.Q44 auxiliary courthoum! within the city limits the county seat la eubject ,the city’s ‘zoning ordinancea and building codes. We 924 AIberIa Ave.. Sullr 160 conclude that the ccunty’a use of land for an auxiliary is ‘aso. TX. 76Wt279.3 subject ~to the munic:ipality’e tom the extent 3Iol5353464 that nuch ordinancmt ‘do not prevent from reasonably

locating its auxilicuy courthoucle within limits of the 1001 Texas. sqite 7w county seat. Addit:looally, ve conclude that the county muat comply Houslon. TX. 770023111 with the munfcipalitp’e building and fire coder. 713i223.6666

Texas courte have yet to determine the acope of a municlpality’e zoning power over county property located within municipal llmita. We 606 Broadway. Suite 312 Lubbock. TX. 794014472 recently held buildinge, structures. and laod controlled by 6ow747-6236 federal or etate aga!c,ciem ari ixeapt from municipal ronlug. Attorney

General Opinion m-117 (1983). Bowever. a political rubdivision’o property Is not l tate property for purpoaea of resolving conflict8 4366 N. Tenlh. Sull. S with another politiml Port Arthur rubdivirion. MCAIIen. TX. 76601-1666 5w662-4647 Dlatrfct v. City of Grovea. 376 S.W.2d 330, 333 (Tex. 1964); Attorney

General Opinion lN-Gi)(1982). 200 Mel mua. Slme UK) A municipal acnln8 ordinance which conflict8 vith or is Sm Antonlo. TX. 762OW767 inconsistent with e’tate legislation 1~ invalid. City of Brookside 512/2264161

Village v. Comeau, liZI S.W.2d 790. 796 (Tex. 1982). However, state legislation In e particular field does not automatlcally preempt ,field from amicipal regulation; local regulation ancillary to and in harmony with the purpose the state leginlation is acceptable. Id. Thur, whether a municipality may exercise zoning paver over a count- auxiliary courthoure: located vlthln the municipality depend6 upon reconciliation two different, potentially conflicting legislatively created powerr.

The coumieefone:rtl court a county ha6 authority to provide courthouse8 in seat. V.T.C.S. art. 1605a-5. *2 Honorable Fred M. Barker - Page 2

51(a)(l); V.T.C.S. art. 23753’5, Il. Subsection l(a) (1) of article authorizea the comissionera 1605a-5 specifically court to provide courthousea

in any part of city, town, or village designated a8 the comty eeat, including a part of the municipality atlcled to the municipelity after it became the cow&p rut. but not including a part of the munic:ipality la outside county. (Emphasis mlded) . does not indicate

liowever. the legfrlative history that “in any part” was intended to address a c:onflict with city zoning ordinances; la not limited rather. it wan intended to indicate that the to the “town center ” .

Additionally, counties hwe the right of eminent domain four the purpose of condemning and acquiring land, right way or tuhaement in land, private or public . . . whew said laod. right of vay ‘or ie neceeaal)m in the construction .caeement of . . . courthouses . . . .

V.T.C.S. art. 3264a. Article 6702-l. section 4.302. grants counties the right eminent domain for road construction and maintenance purposes within the bouadazles of ounicipalltlcs and expressly r:he municipality. raquircs the prior,consent No similar statutory requirement for a muaicirv~lity’a : consent amlies tom county co~dexmations pursuant to, .art&le :3264& Cf. Cir;-of fpler v. Smitir ~County, 246 S.l?.2d.601~(Tex. 1952); El Pasoaty v. City of El Peso, 357 &U.2d 783 (Tex.. Civ. ,App. - 81 Paeo 1962, no writ) (resolution conflict over condemnation by one political subdivieion of property belonging to an equally empour~‘cd subdivision ultimately reste on the of the public). paramount use and best interests

Zoning regulation io a recognired tool of cowaunity planning in .itm vhich allova a municipality, legislative dircretion, restrict the use of property fc,c the protection of the general health, City of Broobide Village v. safety, and velfare the public.

Comeau. a; see V.T.C.S. nrts., 1011a through 10113 (the zoning act ofzas which l u,thorixes building enebllng and zoning regulation by municipalities). a municipal roalng ordinance vhich Became conflicts with or lo inconrlrtturt with l tate lenjslation cannot stand, City of Brookside Village v. Ctmeau, a , an orditica which defeata legislative authorization ~~countica to ertabliah courthoueer ia Invalid.

Honorable Fred M. Barker - P#ll;e 3

Texas courts dealing with conflicts .betwean municipslitiea and school districts employ thicl reasoning to hold that municipalities cannot use their zoning po!n,ra totally to exclude the reasonable of achoo~.facilitic~ location within municipal boundaries. Austin Independent School Dietrict o,, City of Sunset Valley, 502 S.W.Zd (Tex. 197,3); Port -Arthur Independent ,School District v. City of 1964); City of Addison Crivea , 376 S.W.2d, .330:. (Tt;:. v. Dallas Independent School, District, (132 S.W.2d 771 .(Tex. Civ. App. ‘- Dallas 1982. .writ ref’d n.r.c.). AlLn&~g such an exclusion would defeat the school district’s power of end,nent domain. Austin

District v. City of Sunset Valley, B; City of Addison v. Dallas Independent School District, eupra, Nor can the zoning ordinances municipalities override the eminent domain powers granted by the legislature to other types of cntitiea. Sea Gulf, C. 6 S.P. Ry. Co. v.

m, 281, S;W.Zd 441 (Tex. Civ. App. Dallas 1955, writ ref’d Fort Worth 6 O.C. Ay. Co. v. Auunons. 215 S.W.Zd 407 (Tex. n.r.e.); Civ. App. -. Amarillo 1948; writ ref’d 0.r.e.). from As a practical matter, a political subdiviaion’a “immunity”

rC munidipal zotilng ‘is limited by a rule of reasonableneaa. For example, despite language ,in~ the Sunset Valle case that school districts are -- 4’ absolutely immune from a city s zoning power, the supreme court emphasized that its holding was that the Sch,,l District act with can

not impunity . ~. . . ( Yhia immunity is absolute unless the City in #: given instance can show or arbitrary.’ its exercise is unreasonable 502 S.W.2d ,.at ,674:; (quoting ,ulth epproval from City of Nevark v. University of Delaware, .,3D4 -A.,:!d 347. ,349 (Del. Ch. 1973)); see City of Addison -v. Dallas Indepe~~lant School District, 632 S.w.?d at 772-773. ‘.

Similarly. in Porter v. Southwestern Public Service Co., 489 S.W.2d 361 (Tex. Civ. App. - &rillo 1972, writ ref’d n.r.e.3.

court held that,, absent i su&lined challenge, a city did not usurp --- the eminent domain power of a public utility by requiring it to meet certain standards under tit:? zoning ordinances. Therefore, ve conclude that Parker County’s IMC of land for an auxiliary is subject to the city’s to the extent such ordinances do not prevent from reasonably locating its limits the county seat. courthouse within However, county must comply with city regulations regarding r construction its rcxiliary courthouse. Texas courts distinguish between municipal :#,ntrol over location buildings of another political subdiviair~c and control over the construction See, e.g., %eet Valley, m, at 673. The supreme such buildin8a. *4 Honorable Fred M. Barker - Pr,fe 4

court in Port Arthur fndeperdent School Oiatrict v. City of Groves, must comply with city's supra, held a school district .by l uthoriainS building regulations. The legislature, the ,achool vithin a ~nicipality. did~not district to locate a school Sacility preempt the city's police povcc to enforce necessary health and aafety Port Arthur I!dependent regulatione. School ~Diatrict v. City ~of Groves, B, et 334. ~Lo Attorney General Opiuim~M~l-508 .(1982), ~-office ~extended~thia"~ratlonele to counties end detelrined -.thet couuty buildings within munic:~.palitfes are subject to municipal-fire codes. See al~eo Attorney Geno::al Opinion WV-218 (1957).

Although particular "poli:e power" regulations vhich. in effect, prevent the location of another political subdivision's fecilitiea may be invalid, see. e.g., Cit of Addison v. Dallas +- . Ofstrict, supra, the county II authority to locate buildings in a

municipality does not abrogc.re municipal authority to protect public health, safety, and veXare. See City Fargo, Case County v.

~ Harwood Township, 256 N.W.2'1 694 (N.O. 1977); Lincoln County v.

Johnson, 257 N.W.Zd 453 (S.11, 1977); Wilkinsburg-Peaa Joint Water Authority v. Borough of ChurclG, 417 Pa. 93, 207 A.2d 905 (1965); Pal-Uar Water Hanagement Oia~rict v. Martin County, 377 So.2d 752 (Fla. Diet. Ct. App. 1979).

&II M M A R Y Parker County's ure of land for sn auxiliary within limita seat ,ia subject to the munlcipality'e the extent such do not prrrent ordinances from loceting its auxiliary courthcuae within the municipality.

l'he county must comply vith municipal regulations regardinS couw:ruction its courthouse.

Very truly yo 8 LJ!!!k

m

JIM MATTOX Attorney General Texas TOM GREEN

First Assistant Attorney Genera,]

DAVID IL RICHARDS

Executive Assistant Attorney General

. -

Honorable Fred M. Barker - Pa&c 5

Prepared by Rick Gilpin

Aaeiatent Attorney General

APPROVZD:

OPINION CQEMITTEE

Rick Gilpin, Ghairman

Go1111 Carl

Susan Gerriaon

Jim Moellinger

Nancy Sutton