The Supreme Court of Texas Asked to Consider "De Facto" Zoning in Houston

Houston prohibits zoning. But Houston permits a "Historic Preservation Ordinance."

The City of Houston is unique. On three occasions, the people have voted by referendum to prohibit zoning. However, the City has attempted to work around that prohibition through the Historic Preservation Ordinance (HPO). This law allows certain "historic" neighborhoods to regulate land use. Since 2014, my colleague Matt Festa has been litigating a challenge to HPO. He contends that the HPO is a form of "de facto," or "backdoor" zoning.

This case is now on appeal to the Supreme Court of Texas. The review process is discretionary. You can find all the filings here. Here is a summary of Festa's argument:

This case involves important issues of Texas State law regarding the statutory authority delegated by the Texas Legislature; the State's legal limits on the powers of municipal corporations; state-delegated local land-use regulatory power; and the individual property rights of all persons under the Constitutions of the United States and the State of Texas. The people of Houston have—three times in the past century—mandated that zoning, a regulatory tool that prescribes different rules based on map-based regulation, is illegal as a municipal power. See, e.g., Teddy M. Kapur, Land Use Regulation in Houston Contradicts the City's Free Market Reputation, 34 Environmental Law Reporter 10045, 10057-61 (2004). The people of Houston have taken the additional step of voting their zoning ban into the City Charter, making it a fundamental law.

The Texas Legislature has set forth explicit rules for zoning in general—as well as historic district zoning—rules that focus on due process of law. Under Texas law, any city that wishes to regulate historic preservation by geographic district lines must comply with Chapter 211 of the Local Government Code, which sets forth the substantive and procedural requirements for historic district zoning. The City of Houston has ignored these concerns in enacting a de facto historic district zoning law that violates both the Houston Charter and general Texas Law.

And the Houston Chronicle has profiled the case here.

In 1994, Houston amended the city charter so that it can only adopt zoning ordinances after it publishes any proposed ordinance for public hearings and debate during a six-month waiting period and then holds a binding referendum at a regularly scheduled election.

In 1995, Houston adopted the HPO, providing for the creation of historic districts. The ordinance required for property owners in designated historic districts to apply to the Houston Archeological and Historical Commission for a "certificate of appropriateness" for demolishing, modifying, or developing property situated within a historic district.

In 2010, Houston passed the Transition Ordinance that created a one-time, "process for the reconsideration of the designation of historic districts," as long as 10 percent of a historic district's property owners request it. Then Houston's Director of City Planning and Development Department would consider the request and make a recommendation to the city council, giving them the final say.

Regarding homeowners in Heights East, more than 10 percent of homeowners petitioned for the reconsideration of the neighborhood's historic district status. The Panning Department then mailed each property owner in Heights East a survey asking whether they supported the repeal of Height East's designation as a historic district.

The Director found that, "of the 780 tracts in Heights East, only 193 requested the repeal of the historic designation." The Director recommended to the city council it take no action. The council rejected the Director's recommendation but failed to pass any further ordinances or resolutions for Heights East's status as a designated historic district.

"That vote should not have even taken place," said Festa, "because it's essentially an end-run around the zoning ban."

The Texas Attorney General and the Texas Public Policy Foundation filed amicus briefs in support of the property owners. Professor Sara Bronin (a Houston native) filed an amicus brief on behalf of property professors ins support of the city.