Forget What You’ve Heard, Houston Really Does Have Zoning (Sort Of)

Ryan Holeywell | @RyanHoleywell | September 9, 2015

Image via flickr/nasamarshall

Image via flickr/nasamarshall

When Matthew Festa goes to professional conferences, he often hears the same jokes.

He’s a land use professor in Houston, a city famous for its lack of zoning. So he must not be very busy.

“It’s about as funny as you get for land use professors,” said Festa, a professor at South Texas College of Law.

Of course, jokes like that come about for an obvious reason: Houston is the only major American city that lacks zoning. That position makes it a unique footnote in legal and urban planning textbooks. Among professionals who focus on urban development, Houston’s well known for being an anomaly.

But should it be?

For all that’s been made of Houston’s infamous lack of zoning, Festa said it increasingly seems that reputation isn’t deserved or even accurate.

“We do have a lot of land-use regulations,” Festa said. “We still have a lot of stuff that looks and smells like zoning.”

To be more precise, Houston doesn’t exactly have official zoning. But it has what Festa calls “de facto zoning,” which closely resembles the real thing. “We’ve got a lot of regulations that in other cities would be in the zoning code,” Festa said. “When we use it here, we just don’t use the ‘z’ word.”

Houston’s lack of zoning is an interesting quirk among American cities, in part because even those who’ve studied the topic don’t know exactly how it emerged. One hypothesis is that it came from a stereotypical Texan attitude: an independent streak, combined with skepticism of government and a hatred of regulation.

Except that can’t possibly be the case because every other major city in Texas has zoning.

Houston residents don’t seem overwhelming opposed to zoning either. The city’s charter requires any efforts to establish formal zoning to be put to voters. That’s happened three times – and each time, zoning lost – but they weren’t landslide defeats.

Regardless, as Festa sees it, Houston today has zoning – whether it wants to admit or not.

His evidence? For one thing, Houston doesn’t look that different from other major urban centers, especially other sprawling cities in the American Sunbelt. If Houston really lacked zoning, one would assume the effects would be more dramatic.

“One thing I started thinking about is why doesn’t Houston look all that different from Dallas?” Festa said. “We don’t have brothels next to churches. For the most part, we don’t look all that different from other big cities that do have zoning.”

Moreover, whatever Houston has seems pretty closely related to the historical definitions of zoning. In the 1920s, states started adopting laws that made it explicitly clear that cities have zoning authority. In Texas, the law allowed for regulations of building sizes and heights, the percentage of a lot that could be occupied, and the density of communities, as well as land-use. Houston doesn’t explicitly regulate land-use. But it regulates all those other things which fall under zoning’s banner.

Festa also rattles off a list of other policies that bolster his case that Houston effectively has zoning.

Deed restrictions: In Houston, developers create rules to prevent things like corner stores within residential neighborhoods. Those rules are called deed restrictions. Houston is unique in that it will represent residents when they try to enforce those covenants.

Density: Historically, the area within the confines of the 610 Loop have been permitted to have higher levels of density than the rest of the city. But recent changes to city policies extend the higher density levels all the way to Beltway 8. “Those are rules that tell you what you can and can’t do, based on where you are on a map,” Festa said.

Tax Increment Reinvestment Zones: The controversial tool allows certain areas within distinct boundaries to retain property tax revenue for uses within their borders. The word “zone” is right in the name.

Airports: The Houston area has three major airports, and under federal rules, the communities around them are subject to zoning requirements. “It’s a good chunk of metropolitan Houston, and it’s flat out zoning,” Festa said.

Buffering ordinance: New rules restrict tall buildings to “major activity centers” by limiting their height, set back requirements and construction styles.

Historic preservation: Residents can ensure many types of building restrictions within their communities if they get enough votes to create a historic district.

Lot sizes: City rules restrict lot sizes, but neighborhoods can petition for even tighter restrictions if they get the votes.

For Festa, the evidence is clear: there’s something that seems a lot like zoning in Houston. It’s almost useless to debate whether it exists.

Instead, what’s more important is to have a discussion about whether the de facto zoning system is working for all residents. That doesn’t seem to be happening. The problem, Festa said, “is there’s no comprehensive plan.”

As decisions about building are made, they’re often not done in a way that examines how they positively or negatively affect each neighborhood.

Instead, it’s the communities with the time, resources and political clout that essentially have the power to restrict development within their borders. That pushes it to other areas without a meaningful discussion of the citywide implications.

The result: as Houston becomes more dense, not all places will change equally. “We’re coming up with rules to make Houston liberalized in terms of density and development … but giving particular neighborhoods tools to opt out,” Festa said.

Festa, notably, testified for the developers in a controversial case in which residents of a wealthy Houston single-family neighborhood fought to block construction of a high-rise in their community. The high-rise was allowed to move forward – it didn’t violate zoning rules – but a judge ordered developers to pay residents $1.2 million in damages because it was considered a nuisance.

In the abstract, giving neighborhoods more control about their future make sense. But practically, it allows certain areas to easily make end-runs around the status quo.

What Houston might have is the worst of both worlds: all the burdens of regulation and none of the foresight to use it effectively. “It works like zoning,” Festa said, “but it’s not the product of a comprehensive plan.”

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13 Responses

  1. Dexdan says:

    Buffering ordinances? Has he not seen those 3 story monstrosities that stretch the entire property line and have sucked the soul and the sun out of the Heights, Montrose, and pretty much every neighborhood within the loop?

  2. John Thacker says:

    Houston does have land use regulations, yes. Not mentioned in this article and even more relevant in affecting the city’s development until recently was the sewer moratorium. Houston densification in recent years was only made possible when the moratorium ended. But the absence of zoning does result in fewer net land use restrictions than in cities with formal zoning. There are single family homes redeveloped into townhomes or even giant multifamily towers with SFHs still next door in a way that is rare to see in other cities. Density restrictions are one thing, but you can built a lot more as of right than you can elsewhere.

    “Instead, it’s the communities with the time, resources and political clout that essentially have the power to restrict development within their borders.”

    To the degree this is true, this a way that Houston is *like* cities with zoning, not unlike. It’s crazy and absurd to think that cities with “comprehensive plans” don’t have those plans massively influenced by neighborhoods and communities with “time, resources and political clout.”

    Every time Houston has voted on zoning, it’s been the upper middle class that has strongly voted in favor of zoning, and the working class that has voted against. That’s because zoning would benefit those with time, resources, and political clout, and raise housing prices.

    It’s a welcome correction to note that Houston still has some land use restrictions. But it goes way too far to claim that there’s little to no difference. A “comprehensive plan” would be a disaster for Houston, tilting things *even more* towards communities with power than the current situation. Houston’s not in a “worst of both worlds,” but in the middle of a continuum.

  3. Ryan Holeywell says:

    Dexdan — The buffering ordinances he’s referring to are relatively new, so those buildings likely pre-date it. The ordinance was designed to prevent things like that in the future, but it couldn’t retroactively remove projects that have emerged in recent years.

  4. Ryan Holeywell says:

    John Thacker: “It’s crazy and absurd to think that cities with “comprehensive plans” don’t have those plans massively influenced by neighborhoods and communities with “time, resources and political clout.” — Good point. No system perfectly represents everyone; that’s the reality of politics.

  5. mike says:

    its roads and highways and interstates.

    that in my opinion the most impactful and most used de-fact zoning for local nhoods/communities + the city of houston + the entire 10 county houston msa

    new development (sprawl) doesnt happen until a road (county) or highway (state/txdot) or mega toll road/loop (private company, grandparkway) gets built through it.

    if it wasnt for new road/highway etc construction, we wouldnt have had/be having the rate of single family and big box real estate development we had/are having now.

    pretty suprised he didnt make any comment about transportation bc as an urban planner i believe that has and still does shape houston and surrounding areas more so then the NIMBY type tools/stuff he listed above.

  6. Tim says:

    Two words: Transco Tower. Ok, it’s called Williams Tower or something now, but still, 60-story highrise all by itself in the suburbs? Only in Houston.

    • theGman says:

      The Williams Tower is the tallest building in the world built outside the primary business district. That makes it pretty cool in my book.

  7. theGman says:

    Why does the author and the experts quoted (and 99.999% of Houstonians) continue to push a false premise that Houston has no zoning? They have apparently never done their homework to know that St. George Place near the Galleria mall is Houston’s first (and only supposedly) zoned residential neighborhood. So people should say “Houston has VERY LITTLE zoning”, but stop saying it has none.
    Now you all know so can stop spreading this falsehood of no zoning.

  8. Chuck Thomas says:

    Then your book isn’t an Urban Planning text book. Besides just the traffic there’s a bunch of stuff that’s uncool about it.

    • theGman says:

      Not sure why any “text book” (euphemism for “largely academic and likely out of touch”) matters on the subject of Williams Tower’s placement in 2015. It was built decades ago, so the questionability of its location back then is interesting academic dialog but the reality (despite Uptown long ago having been a “suburb”) that towers iconic style and placement look very intelligent today given its now located in the epicenter of the 8th largest business district in the country (larger than downtown Phoenix etc). So I’m not if you are saying Galleria traffic itself is uncool (more poor road planning/forecasting due to the Mall and its many exits than anything) or you actually care that Williams Tower is 60 stories as being uncool … as opposed to 30-40 like more recent towers in Uptown (and they are only that size because of economics, even downtown towers are not built above 40-50stories anymore). Bottomline is the Williams Tower when it was built long ago and especially today would’ve survived hypothetical city zoning retrictions (Uptown was always planned to be a second urban center). So yes it’s definitely not un-cool by most logic.

  9. Anon says:

    LA does have brothels next to churches — it’s the closest thing to no-zoning I’ve ever seen. Houston seems extremely zoned.

  10. Alden Wilner says:

    I was expecting to find something about parking regulations. Houston, as I understand it, has minimum parking requirements, just like most American cities. This “zoning for asphalt” is one of the unsung drivers for sprawl.

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