6th & Neches, L.L.C. v. Aldridge

992 S.W.2d 684, 1999 Tex. App. LEXIS 3365, 1999 WL 274122
CourtCourt of Appeals of Texas
DecidedMay 6, 1999
DocketNo. 03-98-00649-CV
StatusPublished
Cited by10 cases

This text of 992 S.W.2d 684 (6th & Neches, L.L.C. v. Aldridge) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
6th & Neches, L.L.C. v. Aldridge, 992 S.W.2d 684, 1999 Tex. App. LEXIS 3365, 1999 WL 274122 (Tex. Ct. App. 1999).

Opinion

JAN P. PATTERSON, Justice.

Appellant 6th and Neches, L.L.C. filed a petition for writ of mandamus seeking to compel the City of Austin (“City”) and its secretary, Elden Aldridge, to enact a zoning change.1 The trial court denied appellant’s request. We will affirm the trial court judgment.

THE CONTROVERSY

Appellant owns property at 17th and Lavaca in Austin. The property is zoned for downtown mixed use (“DMU”); thus, the maximum height of buildings on the property is limited to one hundred and twenty feet. See Austin City Code § 13-2-630 (1999). Appellant applied for a variance from the zoning ordinance to permit the construction of a taller building. Municipal law requires that a majority of the City Council (“Council”) approve a request for a variance at three separate meetings. Id. §§ 2-2-3, 13-l-406(d).

At the first two meetings, a majority of the Council approved the proposed variance. Before the third meeting, the Council received letters protesting the variance from the General Services Commission (“Commission”) and the State Preservation Board (“Board”).2 Both letters stated in part that “[t]he only existing protection for Capitol views from the hills and freeways around Austin is the City of Austin’s 120 foot DMU zoning. We see no public purpose significant enough to begin a trend towards waiving the 120 foot restriction.” The Commission’s letter was signed by Carl Mullen, a deputy executive director of the Commission. The Board’s letter was signed by Governor George W. Bush, Lieutenant Governor Bob Bullock, and Speaker of the House of Representatives Pete Laney, all members of the Board.

The Local Government Code (“Code”) requires the affirmative vote of at least three-fourths of the members of the Council in the event a proposed change to a zoning regulation is protested by 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. See Tex. Loc. Gov’t Code Ann. § 211.006(d) (West 1988). The parties stipulated that the State of Texas owns at least 20 percent of the land immediately adjoining the area covered by the proposed change and extending 200 feet from that area, thereby satisfying the requirements of section 211.006(d)(2) of the Code.

On the third reading of the proposed change, the Council voted 6 to 2 in favor of the variance. Because the final vote failed to meet the three-fourths requirement, the City did not enact the proposed zoning change. Appellant sought a writ of mandamus to compel the City to authorize the variance. The trial court denied appel[687]*687lant’s request, concluding that the letters constituted a proper protest; therefore, the vote of five Council members in favor of the change was insufficient to approve the zoning change.

DISCUSSION AND HOLDINGS

The single issue in this appeal is whether the letters sent to the Council by the Commission and the Board were properly submitted and constituted a proper protest of the proposed zoning change under the provisions of the Code. Appellant argues that the trial court erred in denying its petition for writ of mandamus because: (1) both the Commission and the Board acted beyond the scope of their legal authority in protesting appellant’s proposed zoning change and (2) the State employees who signed the protest letters acted without authority. The parties stipulated that if none of the persons who signed the letters had authority to sign, the City must authorize the proposed change.

Agencies such as the Commission and the Board are creatures of the legislature and have no inherent power; rather, they possess only those powers that are specifically given them by statute. See McDaniel v. Texas Natural Resource Conservation Comm’n, 982 S.W.2d 650, 651 (Tex.App.—Austin 1998, pet. denied) (citing Sexton v. Mount Olivet Cemetery Ass’n, 720 S.W.2d 129, 137 (Tex.App.—Austin 1986, writ ref’d n.r.e.)). It is undisputed that neither the Commission nor the Board is expressly granted the power to protest an application by a private landowner to receive a zoning variance.

Lack of express authority for a particular act of an agency does not mean that the agency has no authority to act. See Texas Dep’t of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex.App.—Austin 1992, writ denied). An agency may have implied authority to take an action even though such authority might not be expressly enumerated in its enabling statute. Id. Agencies have the implied authority reasonably necessary to accomplish a delegated purpose. Id.; see also Sexton, 720 S.W.2d at 137 (“[T]he Legislature generally intends that an agency should have by implication such authority as may be necessary to carry out the specific power delegated, in order that the statutory purpose may be achieved.”) (emphasis in original). We must discern the legislature’s intent by looking to the statute as a whole and construing any questioned part of the statute to give effect to the legislative purpose. See McDaniel, 982 S.W.2d at 652 (citing Citizens Bank of Bryan v. First State Bank, 580 S.W.2d 344, 348 (Tex.1979) (“The cardinal rule in statutory interpretation and construction is to seek out the legislative intent from a general view of the enactment as a whole.”)).

The legislature has expressly granted to the Commission “charge and control of all state buildings, grounds, and property,” and authorized the Commission to protect state property from “damage, intrusion, or improper use.” Tex. Gov’t Code Ann. § 2165.001(a)(3) (West 1999). The legislature has expressly authorized the Board to “preserve, maintain, and restore the Capitol, the General Land Office Building, their contents, and their grounds.” Id. § 443.007 (West 1998). Appellant contends that the duty of the Commission and the Board to protect and preserve state buildings does not make it necessary for the agencies to protest a private property owner’s proposed zoning change. The City argues that because the agencies have implied authority to do that which is necessary to accomplish a delegated purpose, both the Commission and the Board were authorized to protest appellant’s proposed variance.

The Commission is the custodian of state property and holds title for the State to property adjacent to the area covered by appellant’s proposed zoning change. Id. § 2165.001. While there is no evidence in the record of precisely how the zoning change would impact the Capitol or [688]*688other state properties, an owner of property meeting the requirements of section 211.006(d) of the Code is not required to marshal evidence in support of its protest. After reviewing the Commission’s enabling statute, we conclude that the express authority given the Commission to protect state property from damage, intrusion, or improper use necessarily includes the implied authority to object to zoning changes that might adversely impact state property.

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992 S.W.2d 684, 1999 Tex. App. LEXIS 3365, 1999 WL 274122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/6th-neches-llc-v-aldridge-texapp-1999.