Some interesting real estate law news has come from Texas. In 2021 the Texas Supreme Court said Houston may regulate some development, without breaking the city’s unusual no-zoning rule.
Wait. Houston has a no-zoning rule? And the state’s high court is endorsing ways to regulate around it? Let’s see what’s going on here.
That’s Right: No Zoning. It’s Barred by the Houston City Charter.
There is, officially, no zoning in Houston, the fourth-largest U.S. city.
Now, getting to the crux of the court case, Houston does have a historic preservation ordinance. Isn’t that a form of zoning?
Well, the state Supreme Court in June 2021 upheld the preservation ordinance. In order to uphold it, the court had to declare that it’s not zoning.
The backstory? Developers have been challenging the city over preservation codes for years. So the court’s holding, Powell v. City of Houston, is a big win for the history buffs. And perhaps it’s an end run around the zoning prohibition. After all, Houston residents have tried three times to adopt zoning through the ballot box. Maybe they’re getting their way through the court.
The City Says Historic Preservation Is a Matter of Home Rule, Not Zoning.
Developers are known for exerting a great deal of influence on Houston’s city planning. So, high-rise apartments get built in the midst of individual homes. Many say Houston’s no-zoning charter leaves Houston vulnerable to market-driven developers and disempowers ordinary residents.
Yet under its 1995 historic preservation ordinance, Houston has picked up some leverage. It can create districts, protect landmarks, and set aesthetic standards. The city says this is like regulating for safety or stormwater management. Traditional zoning matters, in contrast, involve things like separating commerce from residential areas.
The Texas court case affirmed that. But several of the judges were concerned that historic preservation could become tantamount to zoning, especially if the city rules out specific kinds of development in its designated historic districts.
Indeed, Houston’s historic districts can actually set limits on what developers do. And the city has so far bestowed historic designations on 22 districts.
What are the real-life impacts? When the rental property developers press in, people can petition for their areas to be classified as historic. In effect, people are using district-making in place of zoning to push back against change.
Several High-Profile Public and Nonprofit Measures Can Influence City Planning.
Houston’s codes guide setbacks and walkable design, particularly near transit lines — though not all rules are mandatory. Evolving planning measures include:
- Walkable Places and Transit-Oriented Development. The city adopted its Walkable Places and Transit-Oriented Development provision in August 2020. Thus, the Planning and Development Department has introduced its Livable Places Action Committee, which works on updates to Houston’s codes. The thrust? To support the “development and preservation of affordable, quality housing” such as policies to allow “missing middle” types of housing that increase housing yet don’t overwhelming their neighborhoods with heavy traffic and construction.
- Livable Centers Program. The Houston-Galveston Area Council, through its Livable Centers Program, focuses on enhancing areas of the cities with walking and cycling amenities among other offerings. After assessing the potential of a given local community, it produces implementation plans, and the Area Council coordinates initiatives that support safety and mobility for walkers and cyclist in these targeted areas.
- The Mayor’s Office of Complete Communities Team. Complete Communities involve projects that improve access to services for small businesses and residents. The mayor’s office introduced Complete Communities in 2017 to help Houston’s underserved areas succeed and thrive.
All of these, supplemented by philanthropic and nonprofit initiatives, serve as Houston’s city planning tools. All work symbiotically with the development code.
The nonprofit initiatives include the work of the local land trust. The Houston Community Land Trust was incorporated in 2018 with the goal of making property titles accessible to Houston residents who cannot otherwise afford to reach their ownership dreams in the midst of high demand and low supply.
☛ What is the “land trust approach” to affordable housing? Check out our brief guide on Deeds.com.
In order to ensure the continuation of wealth through the generations, a land trust homeowner can bequeath the home and the ground lease to heirs. Otherwise, the trust home owner sells the property back to the Community Land Trust according to the terms of a resale price formula, and keep the equity proceeds.
Deed Restrictions in Houston Are a Force to Be Reckoned With.
Houston has established a process for city residents to submit requests for minimum lot sizes and setbacks from roads in the interest of holding off townhouse construction. And many parts of residential Houston have deed restrictions so they may not be replaced by commercial developers. This form of personal zoning is especially common in the wealthier areas. If locals report violations, the city must enforce the language of the deed.
So, like historic preservation and other civic measures, restrictive covenants on title deeds are used protectively in a city without zoning. Some restrictions preserve the traditional character of their lots. Others are created so affordable homes for working people must be preserved as such.
☛ Deed restrictions are separate from zoning rules. Learn more about how these restrictive covenants affect homeowners and communities, on Deeds.com.
How important are these restrictions? The answer becomes clear in areas where they are not commonly used. Developers can target places where there are no deed restrictions, and they are always looking for desirable parcels that lack the covenants. In the least affluent areas of Houston, while residents generally want to keep the character and affordability of the places where they grew up, they’re ill-prepared to fight off the developers. Deed restrictions are powerful and enduring.
All Things Considered, What Is the Reality for Zoning in Houston?
Ostensibly, there is no zoning allowed in Houston for types of land use. Nor may the city’s development code sort land by land use. To this end, the code generally does not limit building height or population density. Technically speaking, it is a city without zoning. And yet…
“A city without zoning,” says Bill Fulton, director of the Kinder Institute for Urban Research, “isn’t necessarily a city without planning.”
That, in a nutshell, describes the city of Houston, Texas.
Supporting References
Supreme Court of Texas: Kathleen Powell & Paul Luccia v. City of Houston, No. 19-0689 (decided June 2021).
Matt Dulin, Kinder Institute for Urban Research, Rice University, via Urban Edge: Houston, the City of No Zoning, Lives to Plan Another Day (Jun. 14, 2021).
Kinder Institute for Urban Research, Rice University, via Urban Edge: Houston Doesn’t Have Zoning, But There Are Workarounds (Jan. 12, 2020).
City of Houston (houstontx.gov), Planning and Development Department: Livable Places Action Committee for the City of Houston.
Dan Parolek for Public Spaces – A CNU Journal: “Best Practices for Ending Exclusive Single-Family Zoning (published by Congress for the New Urbanism on Feb. 25, 2020). See also Let’s Talk Houston (LetsTalkHouston.org): Livable Places and related information at CNU Public Square.
Houston-Galveston Area Council: Livable Centers Planning Studies, including Pedestrian and Bicyclist Planning Publications.
Mayor’s Office of Complete Communities Team, City of Houston: Houston Complete Communities Initiative.
Houston Community Land Trust, Houston, TX: Frequently Asked Questions.
Photo credits: Rome Wilkerson, via Unsplash; and Artistic Operations, via Pixabay.