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Houston: Still Zoning’s Last Frontier?

My hometown of Houston has the dubious distinction of being the only large American city without a zoning code. Not everyone thinks this is a bad thing. The late Bernard Siegan wrote an entire book, the recently reissued Land Use Without Zoning (with a forward by SLoG Founding Editor David Schleicher), extolling the virtues of Houston’s lack of regulation. Chief among them may be that Houston has enabled more affordable multi-family housing than most other large cities. But then again, the laissez-faire nature of Houston’s housing market has resulted in a glut of apartments with dangerous conditions. And what about the many low-income families living around refineries and industrial plants? Or the fact that you have to use a car to get virtually anywhere? Count me among those who think a little zoning might do the city some good.

Houston’s defenders and critics have both pointed to various land use controls, including subdivision regulations and parking requirements, that impact development even in the absence of zoning. But few had asserted that these assorted land use controls Houston constituted zoning. Yet that’s essentially the argument two homeowners lodged a complaint against the City of Houston that eventually made its way to the Texas Supreme Court. Despite a somewhat unique set of facts, Powell v. City of Houston is worth discussing because it presents interesting questions about state enabling authority, home rule powers, and what exactly zoning really is.

At issue in Powell was the City’s Historic Preservation Ordinance (“HPO”), which requires covered property owners to submit plans for significant exterior changes to the city’s Archaeological and Historical Commission. In adopting the HPO, Houston joined over 4,000 municipalities across the country (my census explaining this count is forthcoming!) with similar laws. Houston subjects just 0.4% of the city to the HPO, compared to the national average of about 4.3%. Before a neighborhood will be subject to the HPO, a majority of property owners must vote to create a historic district. In 2010, the City amended the HPO, strengthening its ability to review proposed changes. Shortly thereafter, residents of the Heights East, a historic residential neighborhood in the heart of the city, voted to affirm the application of the modified HPO to their properties.

Not everyone was happy about this decision. In 2014, two homeowners in the Heights East neighborhood sued the City, asking the court for a declaratory judgment that the HPO was void and unenforceable because the HPO violated both Houston’s charter (which requires a citywide referendum to green-light zoning) and the state’s zoning enabling act (Chapter 211 of the Texas Local Government Code). In response, the City asserted it had the power to pass the HPO because the HPO was not zoning, and that its general home-rule police powers allowed it to adopt the HPO. Full disclosure: I wrote an amicus brief in support of the City of Houston’s position, co-signed by two SLoG Founding Editors, Nestor Davidson and Sheila Foster, among others.

The homeowners’ arguments about the HPO being zoning, as it is commonly understood, seemed doomed. Zoning and historic preservation law derive from distinct legal schemes and have different purposes. Municipalities can have one, either, both, or neither. More have adopted zoning than historic preservation law, perhaps because every state, including Texas, has enacted zoning enabling acts, starting a century ago. While each local zoning code is different, codes share common characteristics in the way they regulate uses, structures, and lots in distinctly-regulated districts. The American Law Institute, which restates the common law, has found the key qualities of zoning to be so universal that it added a land use volume to the forthcoming Fourth Restatement of Property. (Full disclosure again: I’ve led the drafting of that volume.) Local historic preservation regulation, meanwhile, largely protects a subset of built resources – historic resources – and usually applies to just a fraction of land within any particular jurisdiction. They are not geographically or substantively comprehensive, like zoning codes tend to be.

The Texas Supreme Court grasped these distinctions. On June 4, 2021, it unanimously ruled that “the ordinance does not implement zoning as that concept is originally understood, and therefore the City Charter’s limits on zoning do not apply.” It went on to say that the state’s judicial precedent defined zoning to include the following features: “implementation of a comprehensive plan of city-wide development, division of the city into geographic districts, and specification of the uses to which land can be put within each district.” Interestingly, the Court said that geographic comprehensiveness (i.e., regulating an entire city) is “informative” but not essential; it wanted to avoid the City circumventing the spirit of the decision by applying a zoning scheme to less than all municipal land. In viewing these factors, the Court correctly determined that the HPO did not satisfy the definition of zoning: the HPO did not come close to citywide applicability, it did not subject regulated property to uniform standards, and it did not implicate uses.

However, the Court also had to opine on the plaintiff’s claims regarding the zoning enabling act. Before getting to what the Court said here, note that it expressly recognized Article 11 of the Texas Constitution, which confirms that home-rule cities like Houston can exercise any powers not denied to them by the Constitution or state law. So did Chapter 211 apply to the HPO, and thus limit Houston’s adoption thereof? The Court said yes, but only because the legislature wrote Chapter 211 to apply a broad range of land use regulations. The chapter’s most relevant provision, Section 211.003, is entitled “Zoning Regulations Generally,” but it does not define “zoning,” and a stand-alone subsection (b) addresses historic regulation as follows: “In the case of designated places and areas of historical, cultural, or architectural importance and significance, the governing body of a municipality may regulate the construction, reconstruction, alteration, or razing of buildings and other structures.” The Court said that this subsection constrained the City’s home-rule powers to regulate historic properties, and thus the City’s adoption of the HPO had to comply with the procedural requirements of Chapter 211. Fortunately, the Court found that the City sufficiently complied. The record showed that the City had, as required, established a comprehensive regulatory regime with tailored criteria, even if the HPO only applied to some resources in specified areas. Thus the Court rejected the homeowner’s request for a declaration that the HPO was void for violating the zoning enabling act.

The historic preservation groups that co-signed the amicus brief, from Preservation Houston to the National Trust for Historic Preservation, breathed a sigh of relief. The decision was a definitive victory for historic preservation, for the City, and for all Houston property owners who opted in to the HPO. The Court’s ruling also gave the City Council a roadmap for new ordinances enabling neighborhoods to “opt in” to non-zoning land use regulations. And neighborhood by neighborhood it may be, given that citywide zoning remains doubtful after several failed referenda over the last few decades. Paraphrasing the Rice Kinder Institute, the city of no zoning lived to regulate land use piecemeal another day.

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