Is Historic Preservation Zoning?

Sara Bronin examines the long-held maxim that Houston, Texas is "zoning’s last frontier," a sprawling metropolis of essentially unregulated land uses, after a consequential ruling by the state's Supreme Court in a lawsuit that challenged Houston's Historic Preservation Ordinance as a form of de facto land use control, equivalent to zoning.

In a lawsuit named Powell v. City of Houston, two homeowners assert that the city's Historic Preservation Ordinance (HPO), “which requires covered property owners to submit plans for significant exterior changes to the city’s Archaeological and Historical Commission," constitutes a violation of "both Houston’s charter (which requires a citywide referendum to green-light zoning) and the state’s zoning enabling act (Chapter 211 of the Texas Local Government Code)."

According to the city, the HPO is not a zoning regulation. In arguing in support of the city's position, Bronin writes that "[z]oning and historic preservation law derive from distinct legal schemes and have different purposes." Unlike zoning, which regulates "uses, structures, and lots in distinctly-regulated districts," historic preservation is much less comprehensive than zoning and "largely protects a subset of built resources – historic resources – and usually applies to just a fraction of land within any particular jurisdiction."

The Texas Supreme Court agreed, ruling in June that "the ordinance does not implement zoning as that concept is originally understood, and therefore the City Charter’s limits on zoning do not apply," as the HPO "did not come close to citywide applicability, it did not subject regulated property to uniform standards, and it did not implicate uses."

The Court's decision "was a definitive victory for historic preservation, for the City, and for all Houston property owners who opted in to the HPO," letting "the city of no zoning" regulate land use in, at least, a piecemeal way.