Posted by: Patricia Salkin | August 26, 2019

TX Appeals Court Holds Historic Preservation Ordinance Did Not Constitute a Zoning Measure

This post was authored by Matthew Loeser, Esq.

In 1995, the City Council of Houston adopted the Historic Preservation Ordinance (“HPO”) that provided for the creation of historic districts and required that property owners in those designated historic districts must apply to the Houston Archeological and Historical Commission (“HAHC”) for a “certificate of appropriateness” before demolishing, modifying, or developing property situated within a historic district. Homeowners, Kathleen Powell and Paul Luccia, owned homes in a designated historic district, the Heights East area of the City of Houston. The Homeowners sued the City, asserting that the City’s Historic Preservation Ordinance (“HPO”) violated the Houston City Charter’s prohibition against zoning regulations. Following a bench trial, the trial court rendered a take-nothing judgment in favor of the City on the Homeowners’ claims.

On appeal, the Homeowners first contended that the HPO constituted a zoning law. The court rejected this contention, finding that nothing in the ordinance addressed building usage or identifies building “classes” or types specifically. The scope of the HPO explicitly stated that it only applied to the “alteration, rehabilitation, restoration, construction, relocation and demolition of any building, structure, object or site” located in a designated historic district. It further stated, “nothing in this article shall be construed to authorize the city to regulate the use of any building, structure or property,” and  “nothing in this article shall be construed to authorize the city to regulate the interior characteristics of any building or structure” provided that any alteration or use of the interior did not affect the outward appearance of the building. Thus, pursuant to the plain language of the ordinance, the purpose and function of the HPO was primarily to protect and preserve areas of historical significance in isolated areas of the City, and did not contain any provisions implementing a comprehensive plan for community development that would implicate zoning regulations. Moreover, there was no evidence that the HPO applied to the City in a comprehensive manner. The court therefore held that the Homeowners failed to show that the HPO was an improper zoning ordinance.

Since the court held that the HPO is not a zoning ordinance, it therefore also held that the HPO not violate the City Charter’s limitations on the City’s zoning power or the provisions of chapter 211. Accordingly, the court overruled the Homeowners’ second and third issues, and affirmed the judgment of the trial court.

Powell v. City of Houston, 2019 WL 2588104 (TX App. 6/25/2019)

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