Municipal Corner

The zoning authority of a municipality is likely subservient to the reasonable exercise of an open-enrollment charter school in choosing a building location. Tex. Att’y Gen. Op. KP-0373 (2021).

The Honorable Larry Taylor, Chair of the Senate Committee on Education, requested an opinion by the Attorney General (“AG”) to assess the authority of a municipality to place certain planning and zoning requirements upon facilities constructed by open-enrollment public charter schools that are not otherwise applied to facilities constructed by independent school districts. The AG opined that the permitting process may not be used to deny public schools the right to choose reasonable locations for their buildings, and that a municipal zoning ordinance treating open-enrollment charter schools differently than other public schools is likely inconsistent with state law.

The AG first addresses a municipality’s authority to regulate the location of public schools, including open-enrollment charter schools. The AG’s analysis references the Legislature’s constitutional duty to establish free public schools pursuant to Art. VII, Section 1 of the Texas Constitution and further explains how the Legislature has delegated this duty in part to independent school districts and in part to open-enrollment charter schools. Pursuant to this delegation, the AG explains the Texas Supreme Court “has determined that the school district’s authority to locate school facilities overrides the police power of municipalities to zone them out in order that the legislative purpose in delegating this authority to the school might not be frustrated.” City of Addison v. Dallas Indep. Sch. Dist., 632 S.W.2d 771, 773 (Tex. App.—Dallas 1982, writ ref’d n.r.e.) (discussing Austin Indep. Sch. Dist. v. City of Sunset Valley, 502 S.W.2d 670 (1973)). The AG further cites Austin Independent School District v. City of Sunset Valley to emphasize the Texas Supreme Court’s conclusion that while a school district may be subject to municipal safety regulations and building codes, a city could not use its zoning power to exclude school buildings from the city’s boundaries. 502 S.W.2d 670, 672 (Tex. 1973). The AG explained that while an open-enrollment charter school is generally not treated as a school district, a court would likely conclude for the same reasons applied to traditional public schools that the zoning authority of a municipality is subservient to the reasonable exercise of an open-enrollment charter school in choosing a building location.

The AG next discusses whether municipal zoning ordinances may treat open-enrollment charter schools differently from other public schools or whether they must instead treat all types of public schools similarly. Citing Sections 12.103 and 12.105 of the Texas Education Code, the AG first establishes that open-enrollment charter schools are part of the public-school system and that the Legislature has provided that open-enrollment charter schools are generally subject to the municipal zoning ordinances applicable to public schools. Reading these sections together and interpreting them in the context of the Act as a whole, the AG suggests it was the Legislature’s intent that municipalities apply their zoning ordinances to open-enrollment charter schools in the same way they do to traditional public schools.

The AG lastly turns to the question of whether an ordinance requiring a special use permit or other permission or consent from a municipality prior to construction usurps State authority to select and approve locations for open-enrollment public charter schools. The AG states that while the Commissioner of Education grants the authority to operate an open-enrollment charter school, there is nothing specifying that the Commissioner, the Texas Education Agency, or any other state entity shall select the location for an open-enrollment charter school. Citing its previous opinions, the AG clarifies that a municipality may enforce its reasonable land development regulations and ordinances against an independent school district for the purposes of “aesthetics and the maintenance of property values” so long as those regulations and ordinances do not effectively deny the district the ability to reasonably choose a building site. Tex. Att’y Gen. Op.
No. GA-0697 (2009) at 3; see also Tex. Att’y Gen. Op. No. JM-514 (1986) at 2. The AG thus states that any such ordinances would have to be evaluated on a case-by-case basis, but ultimately concludes that the permitting process may not be used to effectively deny public schools, including open-enrollment charter schools, the right to choose reasonable locations for their buildings.

This opinion provides helpful guidance to municipalities regarding the extent to which they can regulate public school districts within their boundaries. The opinion also clarifies that while open-enrollment charter schools are generally not treated as school districts, a court would likely conclude that the zoning authority of a municipality is subservient to an open-enrollment charter school’s reasonable choice of a building location.

“Municipal Corner” is prepared by Reid Barnes. Reid is in the Firm’s Energy and Utility Practice Group. If you would like additional information or have questions related to these or other matters, please contact Reid at 512.322.5811 or rbarnes@lglawfirm.com.