Posted by: Patricia Salkin | June 19, 2021

TX Supreme Court Says Historic Preservation is Not Zoning

This post was authored by Edward J. Sullivan, Esq.

              Powell v. City of Houston, __ SW 3d__ (No. 19-0689, Tex., 2021) was a challenge by declaratory judgment against Defendants regulations in support of historic preservation that Plaintiffs alleged violated a 1993 City charter provision that prohibited zoning without an affirmative popular vote in a binding referendum, as well as a state statute. The 1995 Historic Preservation Ordinance was adopted without a referendum and allowed the City to establish historic districts in which property owners must seek approval from the Archeological and Historical Commission for development by way of a Certificate of Appropriateness.  If the Certificate were denied, the owner could wait 90 days and then undertake development through a waiver. In 2010, the City ended the waiver process and refused to remove a historic designation to the Heights East District, at which point Plaintiffs filed the instant case. The trial court denied relief and Plaintiffs appealed, alleging the charter violation and a state statute that required notice and other provisions applicable to local zoning ordinances. The Texas Court of Appeals upheld the trial court decision and Plaintiffs sought review.

              The Court of Appeals held that, because the ordinance did not regulate in support of community planning, but instead focused upon certain properties and certain neighborhoods (about 1% of the city), there was no violation.

The Supreme Court determined the construction of the ordinance was a question of law, which it reviewed de novo, presuming the ordinance to be valid and overturned only on a clear abuse of discretion basis as being unreasonable and arbitrary with the Plaintiff bearing a heavy burden. All parties agreed that historic preservation was a valid police power end, though some amici disagreed. The Court refused to consider such an issue not presented by a party and moved onto the charter and statutory issues, noting that Texas law specifically allows regulations in areas of historic significance.

              As to the charter issue, the Supreme Court found the common characteristics of zoning, i.e., geographic districting and comprehensiveness, were lacking and by its ordinary, common meaning, zoning was not present. Among authority for this view was a line of cases involving regulation if specific uses through zoning-like regulations such as height and distance rules, including those applicable to wrecking yards and adult uses, which did not constitute “zoning,” citing 2 Rathkopf,  THE LAW OF ZONING & PLANNING § 1.41 (4th ed.) that “[z]oning is therefore a tool used to implement a city’s broader vision of itself, and anchoring a zoning scheme within a broader plan prevents it from being used to advance narrower interests ad hoc.” The regulations were thus not zoning under this definition. They do not authorize or prohibit specific uses and site and development regulations that focus on exterior appearances of individual structures and prohibitions on allowing those structures to fall into disrepair do not constitute “zoning.” The Court concluded:

In sum, the Ordinance does not regulate the purposes for which land can be used, lacks geographic comprehensiveness, impacts each site differently in order to preserve and ensure the historic character of building exteriors, and does not adopt the enforcement and penalty provisions characteristic of a zoning ordinance. For these reasons, the Ordinance is not zoning as that concept is ordinarily understood. We therefore hold that the Ordinance was not enacted in violation of the City Charter.

The Court noted that Plaintiffs’ assertions concerning zoning based on geographic areas, swept too broadly and, if correct, would invalidate flood plain and platting regulations, airport buffer and other regulations based on distance, and urban renewal districts.

              As to the allegations of state law, the Court found that notice and procedural requirements apply to zoning and other regulations, including the subject ordinance, they are not, ipso facto, zoning regulations. Moreover, because Houston is a home rule city, it asserted it may adopt the regulations under its charter. The Court found the statute applied, but also that its provisions were met. The ordinance at issue was, under the statute, a “zoning ordinance,” a term that included many non-zoning regulations, to which the Court applied its terms. But the statute required the regulations to be adopted “in accordance with a comprehensive plan,” which requirement was met by its potential applicability anywhere in the city. Moreover, the requirement that regulations must be uniform for each class or kind of building in a district does not apply when the City imposes different design requirements, depending on the structure or area under its delegation of power. The City’s Archeological and Historical Commission served as a “zoning commission” under the statute and makes studies and recommendations. The Court concluded:

              The Ordinance is therefore a city-wide, comprehensive plan to regulate the alteration, construction, and razing of buildings in historic areas. * * *  Because the Legislature considers historic-preservation regulations to be zoning regulations under section 211.003(b) of the Local Government Code, we hold the Ordinance is a zoning regulation adopted in accordance with a comprehensive plan under section 211.004(a).

(footnote omitted)

The challenged ordinance thus survived both the charter and statutory challenges and

the decision of the trial court and Texas Court of Appeals was upheld.

              Justice Bland authored a concurring opinion, joined by three other justices, finding that, although the regulations come “perilously close” to zoning, they do not cross the line as they do not have uniform provisions, nor geographical reach of traditional zoning. However, the concurrence disagreed with the majority’s view that historic preservation regulation can never be zoning, finding that Texas or Houston property protections can exceed national standards.

              Moreover, the concurrence found “disingenuous” the notion that the regulations dealt only with exterior appearances, because it required approval of any development. It was thus saved by its application in a very small area of the city and did not impose standardized, uniform regulations, and was thus not “zoning” as commonly understood, even though under the Texas statutes, it was lumped in with other property regulations as “zoning” under the Local Government Code for purposes of providing limitation on those regulations by requiring a “comprehensive plan,” a zoning commission, and other restrictions. The concurrence concluded:

                             The Court sweeps too widely in stating that restrictions on the appearance and location of buildings do not restrict “uses of land.” The government effectively may restrict nearly any activity by restricting the structure necessary to house it—its size, density, set-back, and architectural requirements. Regulating the owner’s ability to develop the land limits the types of uses to which that land can be put. The Court’s understanding of land use is at odds with the common law and strays from the task at hand of ascertaining the intent of Houston voters who chose to limit zoning in 1993. As the Court acknowledges, “site regulations” are a feature “common to zoning ordinances.” We thus should conclude that the voters considered centrally planned “site regulations” as a restriction they sought to limit when they rejected centrally planned zoning.

(footnotes omitted)

              It is perhaps easier to agree with the Court that the regulations were not “zoning” under

the City’s interpretation of its own charter, but application of the “comprehensive plan,”

“uniformity,” and “zoning commission” requirements continue nearly a century-old tradition of

“saving” zoning by judicial interpretive contortions. It would be far better for the legislature to

revise and clarify planning and zoning enabling legislation.

 Powell v. City of Houston, __ SW 3d__ (No. 19-0689, Tex., 2021)

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