Court Rules that Preservation isn’t Zoning

The Court of Appeals First District of Texas recently ruled that Houston’s preservation ordinance doesn’t violate the city charter, which prohibits zoning. In the ruling, the court found that preservation ordinances are often a part of zoning, but the plaintiffs

presented no authority indicating that the legislature’s grant of authority to pass zoning laws displaces a city’s inherent authority to engage in more limited land-use regulation, nor could we find any.

While Houston does not have a comprehensive zoning plan, it has taken a piece-meal approach to land-use regulations.

Since the 1980s, the city has enacted ordinances that control billboards and other outdoor signage, landscaping, historic buildings, along with other ordinances that are often a part of zoning. But since the city has adopted the ordinances individually, the court finds this acceptable.

In short, City Council could adopt dozens or hundreds of ordinances that do everything zoning does, but so long as the city doesn’t do it in one fell swoop, it isn’t zoning.

Whether historic preservation is part of a zoning ordinance or not is irrelevant. Historic preservation and zoning share a fundamental characteristic: Both prohibit owners from using their property as they choose without first obtaining government permission. Both subject property owners to the demands and dictates of others.

That the preservation ordinance applies only to specific areas of the city does not change its fundamental nature. It is zoning applied to specific districts.