Local NewsHouston Homeowners and City Clash Over Property Rights

A lawsuit before the Texas Supreme Court will determine whether the City of Houston has the authority to issue aesthetic regulations presented as historical preservation to homeowners in the absence of authorized zoning law.
January 6, 2021
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Based on the result of a current lawsuit, homeowners in Texas hoping to use that coronavirus stimulus check to paint their house a color other than that hideous bright pink or soulless beige may have to first consult their local government for permission.

The Texas Supreme Court heard oral arguments Tuesday in Powell v. City of Houston, a case concerning whether a locality has a right to dictate aesthetic changes made by an individual to their own property.

Kathleen Powell and Paul Luccia, Houston homeowners and the case petitioners, reside in the city’s Heights East Historic District — something they were retroactively added to after they had owned their homes and before the governing association was created.

The Office of the Attorney General, Texas Public Policy Foundation (TPPF), Institute for Justice (IJ), and Texas Freedom Caucus (TFC) each filed amicus briefs in support of the petitioners.

Various historical organizations, legal scholars, and a land development organization combined to submit two amicus filings in support of the city.

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Twenty-five years ago, the City of Houston passed a historic preservation law that has since been used to draw boundaries around 22 neighborhoods for designation as protected areas. Any neighborhood constructed before 1970 is eligible for the designation.

Intended to preserve historic aspects of the city’s landscapes and dwellings, this designation carries with it increased rules and regulations governing privately-owned property.

Thrice the city had attempted to enshrine zoning authority by referendum in the charter, and each time they were rebuked. A significant contributor to Houston’s tremendous growth in economy and population, the city’s lack of a strict zoning regimen sets it apart from housing-strapped cities like San Francisco and Austin.

But in 1995 the city council passed a historic preservation ordinance — in effect, a meager version of the same endeavor.

From that point forward, even slight aesthetic changes had to be approved by the city’s Houston Archaeological and Historical Commission.

According to the city’s brief, this quasi-zoning was affirmed by voters when the recission of its historic designation status was rejected by a wide margin.

City officials and preservation advocates say the practice has enabled the conservation of century-old homes and other structures that may otherwise have been bulldozed in favor of newer, more efficient dwellings.

At the center of this case lie two fundamental questions: 1) After voters’ rejections of the city’s attempts to establish zoning, is their historical preservation a de facto version of what voters repudiated? and 2) Does the city have the authority under the Texas Constitution through police powers to regulate an individual’s aesthetic changes to their own property?

The Texas Zoning Enabling Act allows municipalities to establish zoning if they chose to do so. Plaintiffs argue that the referendum failures were rejections of the practice.

The city, meanwhile, maintains that the aesthetic regulations in these select areas fall within the purview of its broad police powers.

One amicus curiae brief filed by the Texas House Freedom Caucus objects to this argument, stating, “[T]he existence of [the Texas Zoning Enabling Act shows] that the municipal power to regulate private property by zoning is not a general police power authorized under home rule, but one that should be taken in tandem with other relevant areas of Texas law.”

Additionally, the city contends that neither the rules governing what changes homeowners can apply to their own property nor the city approval which must be obtained classify as “zoning.”

Chance Weldon, lead attorney on the case with TPPF, told The Texan, “The right to own property in Texas means something. The right to use property as you see fit, provided you don’t harm your neighbors, is at the core of what it means to be Texan — and is a big reason why people from out of state are moving here so much.”

Weldon indicated that federal case law has been more deferential to governments on this question — “relegating private property rights to second-class rights,” as he put it — but emphasized that the Texas Constitution runs counter to that.

Specifically, he cited a Texas case, Spann v. City of Dallas, which ruled zoning outside of “nuisance” issues to be a violation of property rights — for example, a factory within a residential neighborhood.

The city, meanwhile, focuses on the U.S. Supreme Court decision Euclid v. Ambler which upheld a municipality’s use of zoning as a police power.

Thus exists a dynamic of conflicting federal and state case law.

In IJ’s brief, they contend that both the Texas Constitution’s “Takings Clause” and its “Due Course of Law” clause establish more stringent protections than does either the U.S. Constitution or federal case law.

“This case is about making sure that property rights in Texas don’t suffer the same fate [as in federal court]. We’re not asking the court to find new rights, we’re asking the court to prevent the erosion of private property rights that predate even the Republic of Texas,” Weldon concluded.

The City of Houston did not return a request for comment by the time of publishing.

A state appeals court sided with the city in 2019, but the decision was appealed by the plaintiffs to Texas’ highest court.

There’s no definitive timeline for a Supreme Court decision, so maybe consider holding off on that next coat of paint until the dust settles.

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Brad Johnson

Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.

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