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

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

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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.

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  1. Ignoring for the moment the blatant ignoring of process in an issue surrounding the council having created a process to ignore mandatory process (law), 193 / 780 = 25%, which last time I checked was well in excess of 10%.

    1. 1. An informal mailer is not a votd
      2. An informal mailer is not scientifically statistically accurate.
      3. As the current law (and a direct vote no less) represents the will of the people, one must assume no-replies be tallied as yes, the council did wrong, and added to the 193, and they not be used by the squirrely-sketchy as a stamp of approval. This rhetorical twist by the power grabbers has not gone unnoticed.

      1. It may not have gone unnoticed but it is not like any consequences have followed.

    2. But the 10% threshold just requires “a process for reconsideration”. That’s toothless because a rubber stamp with “We were right the first time” is still a ‘reconsideration’.

  2. It seems that 193 people voted to rescind the District.
    How many actually returned the ballot?
    How many voted to keep the District?
    Were the ballots sent only to Property Owners?
    Is 1 parcel one vote a valid measure and how many votes actually live in the district?

    1. Is, “How many people have to vote to rescind an illegal act before it actually gets rescinded?” really a question that has to be asked?

      1. Yes, according to SCOTUS.

  3. Despite the framing of the OP, there is a reason that this argument was rejected by both the trial court and the appellate court.

    It’s not zoning. Calling any regulation of land “zoning,” doesn’t make it so. Calling it “de facto” or “backdoor” zoning doesn’t make it so, either.

    If the police power of the state (in this case, the municipality) is used in a way that is not a comprehensive land use regulation, then it’s not zoning. It’s … kind of simple.

    It doesn’t mean you won’t get the Texas Supreme Court to agree with you; they make squirrelly decisions all the time. But this isn’t zoning.

    1. And a cop kneeling on your neck for 9 minutes isn’t murder, nor are Burn Loot Murder enthusiasts criminals.

      1. It is so wonderful to see that some jerks can manage to take a purely legal discussion about a fairly dry property issue …

        and use it to unleash whatever political things are going through their pea-sized brain. Thanks, guy!

        1. Inept deflection. Try again, maybe you will get lucky and your brain will expand to pea-sized.

          1. Wow, you not only know nothing about the subject matter, you beclown yourself.

            Troll harder, or troll somewhere else were your rantings are acceptable, tool.

        2. In what universe is a legal restriction on the use and enjoyment of private property NOT a political issue?

          I suspect that you are the sort of human cattle that thinks the rancher is protecting you

    2. It seems to me facially you are right.

      Now I could imagine such an ordinance being applied in a way that might make it zoning (i.e., if the city decided that any commercial buildings were inconsistent with the historic character of a neighborhood but single family residences were consistent with it). But that would be an as-applied challenge to a specific regulatory decision.

      1. If the city designated the entire city as a historic district, requiring you to go through the process and get a CoA (certificate of appropriateness), then most definitely.

        But nothing about this, including the need to opt-in and the very limited coverage, makes this zoning.

        (That said, I would just argue that nothing is Houston is historic …. )

  4. Reminds me of a Wisconsin case from a few years ago. State statute prohibits municipalities from adopting restrictions on bearing arms stricter than state statute with any ordinance or regulation. Madison tried to do just that, but called what they were doing a “rule”. The Supreme Court of Wisconsin was unamused.

  5. So a few quick thoughts-

    1. It is exceptionally difficult for me to understand the argument that historic preservation (or whatever you want to call it) is “zoning.” I have the misfortune of living in a place that has both insanely complex zoning (comprehensive land use regulation) as well as a number of issues dealing with historic preservation, and they are not the same. It’s a stupid argument, and I am completely unsurprised that it has been rejected so far. The simple version is that zoning is about land use, and historic preservation is about preserving the appearance of a building. To give a simple example- zoning is what we think of in terms of “you can’t build a commercial property in that residential area” while historic preservation is “you can change it from a home to a retail outlet, but it has to look the same.”

    2. So I read the Texas AG amicus, hoping it was less stupid; the best colorable argument I see is that by designating districts as historic, and not just buildings, it is effectively spot zoning. I can’t agree with that; given my experience in other states that both have historic buildings and districts. But it also misconstrues the law on spot zoning, which occurs in the context of a larger zoning scheme (which does not exist here).

    1. As someone who has litigated historic preservation cases, I think your opinion seems totally out of touch with what I’ve encountered. Most historic cases i’ve been involved in were backdoor nimbyism. Another one was intentional harassment against the property owner by a councilwoman who had a grudge. “Preserving the appearance of a building” as you call it also means that building can’t be torn down and rebuilt into something that is a different use. For example, in the grudge case, the owner wanted to take down a 2 story home he had converted to a law office and turn it into a 5 story mixed commercial/residential building.

      1. Um …. what? If you’ve litigated these cases, then you should know better.

        Look, if someone said, “The HOA statute and the COA statute are different. Therefore, the HOA statute doesn’t apply because this is a condo association,” that would be unobjectionable, correct? You understand that, since you’ve litigated.

        Now, if random internet guy then says, “Yeah, but I’ve litigated HOA cases before, and it’s just like COAs- it’s all about petty neighbors trying to control each other.”

        Okay? Great? That has nothing to do with the simple issue: a COA and an HOA have different statutes; therefore a COA is not an HOA.

        There are a billion ways to practice NIMBYism. It doesn’t make every example of NIMBYism zoning. If someone uses federal law to practice NIMBYism, then BY DEFINITION, it isn’t zoning.

      2. Addendum (since this we cannot edit)- I don’t mean to be harsh or dismissive. FWIW, I agree with you that most historic preservation cases that reach litigation involve some type of NIMBYism. But that doesn’t make it zoning. There are all sorts of ways to practice NIMBYism that aren’t zoning. Zoning is banned; this isn’t zoning. If the Texas Supreme Court adopts some new definition of de facto zoning, it will be news to me, and as far as I can tell, brand new law.

        1. It has the same effect of preventing you from building what you want on the property, it locks you into a building density, which is what zoning is about.

          1. It does seem like the rule is “you have to work with whatever structure was there on X date”, there is a lot of overlap with zoning because it does indeed lock you into existing densities.

            Imagine something like California’s SB50 were passed, but then the Palo Alto or Mountain View city council declares everything within half a mile of the Caltrain station as a historical district so no new buildings or enlargements of existing ones is possible. This would seem to have exactly the same effect as a zoning rule limiting density even if the rationale was stated differently.

          2. Again, you just said the same thing. A restrictive covenant also locks you into a certain building density, which is what zoning is about.

            It doesn’t make it zoning.

    2. Zoning = land use regulation is defensible, I can’t think of a zoning plan that doesn’t regulate land use, but there is also merit in defining zoning as regulation (of land use, development, or design) that is based on zones. And so a maximum height rule for a class of buildings isn’t a zoning regulation if it applies everywhere, it is just a local building code, but it is a zoning regulation if it applies in some districts but not others.
      I think the city charter ban makes sense with that definition, it prevents landowners’ rights from varying in different parts of the city. Whether that is a good idea or not, it is at least a rational goal.
      What doesn’t make sense to me is the definition used in the appellate opinion. Based on precedent from other districts, they seize on this language in the state Local Government Code §211.001:

      Zoning regulations must be adopted in accordance with a
      comprehensive plan and must be designed to:
      [list of objectives]

      The city argued and the court agreed that the “comprehensive plan” requirement defines zoning, and so ordinances not passed as part of a comprehensive plan are by definition not zoning ordinances and so not subject to the charter ban.
      It’s as though the Fourth Amendment were read to signify that a warrantless search couldn’t have been a search because there wasn’t a warrant.

      1. So if you look to the places that are external to there opinions, you will find that zoning means a very specific thing; it arose from a specific context, and a specific time, both of which are different than historic preservation. I don’t want to go too far down the “land use” rabbit hole, but zoning does require a comprehensive plan (either explicitly, by state statute, or an implicit requirement of same). There are many jurisdictions that don’t even call zoning, “zoning,” but instead refer to localities’ “comprehensive plans” and the process for amending same.

        But it would be error to say that any encumbrance or regulation of land use is zoning; for example, a restrictive covenant is not zoning, even though it can affect a large area. Rules regulating land use that are subject to a HOA are not zoning. Federal law that regulates land use (such as very, on this website, infamous environmental statutes) are not zoning.

        More on-point, there are localities that have ordinances regarding the preservation of local flora (trees) that …. regulate how you can use you land. Again, this is not zoning.

        To me, it’s a definition issue, but not a small one. Zoning has a specific meaning- and Houston did outlaw it. If you want to use your example, it would actually be the usual Fourth Amendment analysis- is it a search. Think of Kyllo. If it’s not a “search,” then it doesn’t apply …. even if it really feels like it is one.

        No matter how much people think this is de facto zoning, it isn’t zoning. But hey- that’s just the trial and appellate court. Texas Supreme Court can yee-haw whatever they want. Don’t mess with Texas, etc. 🙂

        1. Yes, Kyllo is exactly what I’m getting at. First decide whether it’s a search, and if so (and it doesn’t qualify for an exception) then the lack of a warrant means its an unlawful search.

          If SCOTUS had applied the same logic that the Texas 1st Circuit did they would have turned that around, and reasoned that because there wasn’t a warrant it couldn’t have been a Fourth Amendment search.

          I accept that zoning may mean something different than what I think is reasonable, it is how the court got to their definition that I object to.

          1. No, still missing it. In a fourth amendment analysis, you first determine if there is a search. If there isn’t a search, NO ONE CARES ABOUT THE WARRANT. Because there is no search.

            In this case, you can’t have zoning. So the first thing you have to do is determine- is this zoning? Because if it isn’t zoning, NO ONE CARES ABOUT ANYTHING ELSE. Because it isn’t zoning.

            We can go through countless examples of things that aren’t zoning. If you disagree with the definition used by the appellate court, then you have to determine what definition they should have used. Because the threshhold issue is- is it zoning. Because if it isn’t (not “does it have the same effect in many cases” or “do I think that the 1995 council was trying to exert some small bit of control when they realized they couldn’t use comprehensive zoning”) then nothing else matters.

            1. There is definitely some missing it going on here.

              I agree with your first two paragraphs. If there are rules about X, first you determine whether you are dealing with X. If so you apply the rules, if not you don’t. Simples.

              What I see in the opinion is that to answer the question “is this zoning?” the court examines the rules. One rule requires a comprehensive plan, another imposes procedural requirements. The city argued, and the court accepted, that the absence of a comprehensive plan and the fact that the procedures were not followed must mean that the ordinance was not zoning. There is no independent definition of “zoning” offered that could have led to that result, only the rules worked backwards. That is what I disagree with, not with the definition itself. I apologize if this is still not getting through, but I doubt I can make it any plainer.

              1. I understand what you’re saying, but it’s similar to the “search.”

                Just because the 4th Amendment doesn’t define a search, doesn’t mean that isn’t where you start. Texas doesn’t have a “defined term” as to what “zoning” is. In other words, they don’t have one of those handy definitional statutes. But what they do have is a …. zoning statute, which, similarly to other jurisdictions, is about how localities can manage their comprehensive plan (zoning).

                Zoning, in Texas, are those laws that are adopted pursuant to a comprehensive plan. That’s the relevance of the statute. The HPO didn’t meet any of the procedural requirements of a zoning law … because it isn’t zoning.

                I honestly feel like I’m taking crazy pills? You don’t have to look this stuff up in Powell; this is land use 101.

                I get that people don’t like things that encumber the use of land. But not everything that keeps people from doin’ what they want … is zoning.

                1. I guess we will see, as it turns out the state of Texas amicus brief argues that the city’s circular reasoning is invalid, and the HPO is an unlawful zoning ordinance instead of a non-zoning ordinance. To that they add that even if it were not zoning, it would still be unlawful because it isn’t an exercise of the police power and no other state law empowers the city to regulate buildings as the HPO does.

                  1. Yes, I already read the AG’s brief before I started posting. It was linked in the OP. It’s not convincing. I had assumed you weren’t just blathering without knowing anything about the legal issues …. right?

                    But as I repeatedly have said, it’s Texas. The Texas Supreme Court can do whatever they want in terms of state law. There is such a thing as outlier jurisdictions; quite frankly,

                    1. I had read the opinion but not the AG brief.

  6. Houston’s historic reliance on restrictive covenants rather than zoning is one of the biggest cultural differences it has with, for instance, the Dallas-Fort Worth area. It of course grates terribly with the current mayor and city council, who are typical statists, convinced that they know best and are entitled to rule over the rabble. Or in this case, the yuppie 2.0 rabble whose townhouses and condos have long since wiped out most of what was historic about the Heights.

    1. How does the current mayor and city council have to do with the enactment of the Historic Preservation Ordinance in … 1995?

      Genuinely curious, if you’re a local. I mean, from my point of view, it all has to be pretextual, because nothing in Houston needs to be preserved.

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