Kathleen Powell & Paul Luccia v. City of Houston, Texas
Not Reported (2021)
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Rule of Law:
A municipal historic preservation ordinance does not constitute common-law zoning if its restrictions are not uniformly applied within regulated districts and it does not partition the entire city, though the ordinance’s stated purpose and disclaimers about not regulating land use should not be dispositive in determining if it is zoning.
Facts:
- Houston voters have consistently rejected efforts to establish zoning in the City, including a referendum in November 1993, making it the only major U.S. city without traditional zoning.
- Following the 1993 rejection, the City of Houston amended its Charter to explicitly forbid the adoption of a zoning ordinance unless permitted by a binding referendum after a six-month waiting period and public hearings.
- The Houston City Council subsequently adopted its Historic Preservation Ordinance, designed to recognize, protect, enhance, perpetuate, and use sites, landmarks, and areas of historical or archaeological interest within the City.
- The Ordinance establishes a process for creating historic districts, requiring landowners within these districts to apply to the Houston Archaeological and Historical Commission for a "certificate of appropriateness" to demolish, modify, relocate, or develop property.
- In its original form, the Ordinance was largely advisory, allowing landowners to proceed with development plans via an automatic "waiver certificate" after a 90-day review period.
- In June 2010, the City Council placed a moratorium on waiver certificates and then amended the Ordinance to eliminate waivers and establish more restrictive guidelines for construction or alteration within historic districts.
- The amended Ordinance ties certificates of appropriateness to adherence to style, aesthetic, height, size, and location restrictions that vary depending on the look and size of nearby existing structures.
- The Ordinance explicitly states, "Nothing in this article shall be construed to authorize the city to regulate the use of any building, structure or property," and applies to less than one percent of the City’s total lots.
Procedural Posture:
- The City of Houston adopted its Historic Preservation Ordinance and later amended it to eliminate waiver certificates and establish more restrictive guidelines for properties in historic districts.
- Kathleen Powell and Paul Luccia (Petitioners) challenged the Ordinance, arguing it constituted "zoning" and thus violated the City Charter's prohibition on zoning without a voter referendum.
- The trial court (court of first instance) ruled in favor of the City of Houston, holding that the Ordinance was not zoning.
- Powell and Luccia appealed this decision to the Court of Appeals for the First District of Texas.
- The Court of Appeals affirmed the trial court's judgment, concluding that the Ordinance did not constitute zoning.
- Powell and Luccia subsequently filed a petition for review with the Supreme Court of Texas.
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Issue:
Does the City of Houston's Historic Preservation Ordinance constitute "zoning" under the common-law definition, thus violating its City Charter which prohibits zoning without a voter referendum, considering the ordinance's stated purpose and its regulation of land development?
Opinions:
Concurring - Justice Bland
No, the City of Houston's Historic Preservation Ordinance does not constitute "zoning" under the common-law definition, and therefore does not violate the City Charter, because its restrictions are not uniform within districts and it does not partition the entire city; however, the Court errs by accepting the ordinance's stated purpose and disclaimer about not regulating land use as reasons to exclude it from the definition of zoning. Justice Bland concurs with the judgment that the Ordinance is not traditional zoning, but disagrees with the Court's broader reasoning. She agrees the Ordinance falls short of common-law zoning because its restrictions are not uniform (varying "from house to house, street to street, and district to district") and it lacks the geographic reach of traditional zoning, not partitioning the City. However, she argues the Court should not examine the Ordinance's historic-preservation goals or accept its disclaimer that it does not regulate land use, as these are "disingenuous" and "meaningless" if the ordinance does impose land-use restrictions. She contends that the ordinary meaning of "zoning" should not be so narrowed as to remove land-use divisions, however laudable their goals, from its scope. Citing Black's Law Dictionary and Merriam-Webster, she emphasizes that zoning is defined primarily by its "effect—division, partition" and its regulation of "building size, and the like," including "aesthetic zoning" and "contextual zoning," which are precisely what the Ordinance does. She feels that voters intended to prohibit all centrally planned, government-imposed zoning unless approved by referendum, regardless of its purpose. She asserts that restrictions on building placement, development, size, density, and aesthetic requirements are indeed "land-use restrictions" as they limit the types of uses to which land can be put, challenging the Court's narrow understanding of "uses of land." She concludes that the Ordinance's only saving grace is its lack of uniform application and comprehensive effect across the City; if it were more uniform or city-wide, it would meet the common-law definition of zoning, regardless of its stated intent or purpose. She notes that the Ordinance does qualify as zoning under the broader definition provided in the Local Government Code.
Analysis:
Justice Bland's concurring opinion provides a critical perspective on the definition of "zoning" in the context of municipal land-use regulations. By emphasizing the effect of a regulation over its stated purpose or disclaimers, her opinion warns against attempts by municipalities to evade charter-imposed zoning bans through recharacterization. This analysis suggests that future challenges to similar ordinances in cities with zoning prohibitions might succeed if the regulations become more uniform within districts or expand geographically, regardless of their "historic preservation" label. It underscores the importance of the common-law definition of zoning as a safeguard for private property rights against centrally planned land-use controls.
