Kathleen Powell & Paul Luccia v. City of Houston, Texas ( 2021 )

IN THE SUPREME COURT OF TEXAS
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No. 19-0689
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KATHLEEN POWELL & PAUL LUCCIA, PETITIONERS,
V.
CITY OF HOUSTON, TEXAS, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
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Argued January 5, 2021
JUSTICE BUSBY delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE
GUZMAN, JUSTICE LEHRMANN, and JUSTICE BOYD joined, and in which JUSTICE DEVINE, JUSTICE
BLACKLOCK, JUSTICE BLAND, and JUSTICE HUDDLE joined as to Part II.
JUSTICE BLAND filed a concurring opinion, in which JUSTICE DEVINE, JUSTICE BLACKLOCK,
and JUSTICE HUDDLE joined.
This suit for declaratory judgment concerns whether the City of Houston’s Historic
Preservation Ordinance is a zoning ordinance enacted in violation of Houston’s City Charter or
Chapter 211 of the Texas Local Government Code. We conclude that the ordinance does not
implement zoning as that concept is ordinarily understood, and therefore the City Charter’s limits
on zoning do not apply. But Chapter 211 of the Local Government Code does apply to the
ordinance, and it provides that city regulation of structures in historically significant areas must
meet several requirements. At trial, the plaintiffs failed to prove that the ordinance violates certain
of Chapter 211’s requirements. Because the record in this case does not show that the City ran
afoul of either its Charter or the provisions of Chapter 211 at issue here, we affirm the judgment
in favor of the City.
BACKGROUND
The City of Houston is a home-rule city, and its Charter prohibits zoning unless adopted
through a binding referendum. HOUSTON, TEX., CHARTER, art. VII-b, § 13. The Houston City
Council adopted the Historic Preservation Ordinance in 1995 without a referendum. The original
Ordinance allowed the City to establish historic districts and required owners of properties in those
districts to seek approval from the Houston Archaeological and Historical Commission before
modifying or developing their property. Property owners sought this approval by applying for a
certificate of appropriateness from the Commission. If the Commission denied the application,
property owners could wait 90 days and obtain a waiver certificate that allowed them to make the
proposed changes to the property.
In 2010, the City placed a moratorium on the waiver certificates and ultimately ended the
practice altogether by amending the Ordinance. That same year, the City implemented a procedure
for reconsidering a neighborhood’s designation as a historic district. This process was triggered
for the Heights East District, originally designated as a historic district in 2008, when the required
number of residents and homeowners moved for reconsideration. The reconsideration effort was
unsuccessful, and the City continued to apply the Ordinance to Heights East.
Kathleen Powell and Paul Luccia (“the Homeowners”) each own property in Heights East.
They brought this suit seeking a declaratory judgment that the Ordinance is void and unenforceable
because it violates the City Charter’s limits on zoning and it does not comply with certain
provisions of Chapter 211 of the Local Government Code. The trial court denied the Homeowners’
2
requests for declaratory relief after a bench trial on stipulated facts, and it rendered judgment for
the City. 1
The Homeowners appealed, urging that the Ordinance is a zoning regulation. 580 S.W.3d
391, 401 (Tex. App.—Houston [1st Dist.] 2019). As the parties framed the issues, the Ordinance’s
validity turned on whether it implements zoning: if not, the City Charter’s zoning limitations do
not apply, and the City is not required to comply with the Local Government Code’s procedural
and substantive requirements for regulating buildings in historical areas. Id. The court of appeals
held that the Ordinance is not a zoning regulation because the purposes for which it was created,
its function, and its way of regulating property use and development all differ from those of zoning
laws. Id.The court pointed out that the Ordinance was intended to recognize, protect, and improve
landmarks and areas of historical and architectural significance. Id. at 401–02. In contrast,
Chapter 211 of the Local Government Code and this Court indicate that zoning regulations are
used for community planning. Id. at 401 (citing TEX. LOC. GOV’T CODE § 211.004; City of
Brookside Village v. Comeau, 633 S.W.2d 790, 792 (Tex. 1982)). The court of appeals also noted
that the Ordinance does not divide the City into geographically based zoning districts, classify
buildings within zones, or provide uniform regulations as contemplated by Local Government
Code section 211.005. Id. at 403. Instead, it individually regulates the outer appearance of homes
on a case-by-case basis. Id.1
The Homeowners also sought a declaration that the reconsideration effort was successful and that Heights
East was no longer a historic district. Because the Homeowners did not appeal the judgment against them on this
declaration, we do not address the issue.
3
After surveying cases interpreting the concept of zoning, the court of appeals concluded
that it is “a tool of community planning exercised in a more comprehensive plan than that provided
by the [Ordinance’s] protections for the historic character of a few small sections of the City.” 2
The Ordinance lacked some of the key features of zoning regulation, the court reasoned, and
therefore it did not violate the limits on zoning in the City Charter or Chapter 211. Id. at 407. The
Homeowners sought review in this Court, which we granted.
STANDARD OF REVIEW
We construe municipal ordinances the same way we construe statutes. Bd. of Adjustment
of City of San Antonio v. Wende, 92 S.W.3d 424, 430 (Tex. 2002). Their construction is thus a
question of law that we review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.
2008). City ordinances are “presumed to be valid,” and courts “have no authority to interfere
unless the ordinance is unreasonable and arbitrary—a clear abuse of discretion.” Comeau, 633
S.W.2d at 792 (quoting Hunt v. City of San Antonio, 462 S.W.2d 536, 539 (Tex. 1971)). It is the
burden of the challenging party to demonstrate clearly that the ordinance is unreasonable and
arbitrary. City of San Antonio v. Pigeonhole Parking of Tex. Inc., 311 S.W.2d 218, 223 (Tex.
1958); see also City of Pharr v. Tippit, 616 S.W.2d 173, 176 (Tex. 1981) (noting that this burden
is a heavy one).
2
580 S.W.3d at 406 (citing N.W. Enters. v. City of Houston, 27 F. Supp. 2d 754, 795–96 (S.D. Tex. 1998),
aff’d in part, rev’d in part, dism’d in part, 352 F.3d 162 (5th Cir. 2003); Comeau, 633 S.W.2d at 793 n.4; City of
Houston v. Johnny Frank’s Auto Parts Co. 480 S.W.2d 774, 778 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ
ref’d n r.e.)).
4
ANALYSIS
As a home-rule city, Houston derives its authority from the Texas Constitution and the City
Charter adopted by its voters. See TEX. CONST. art. XI, § 5. Houston’s Charter generally confers
on the City all powers granted to municipalities by the Constitution. HOUSTON, TEX., CHARTER,
art. II, § 2.
Home-rule cities may exercise all powers not denied to them by the Constitution or state
law. See TEX. CONST. art. XI, § 5; City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 592
(Tex. 2018). These inherent powers include, for example, the authority to adopt and enforce
building codes, Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016), and in the
case of both general-law and home-rule cities, the authority to regulate land use. Comeau, 633
S.W.2d at 793 n.4.
At every stage of this case, including in this Court, the Homeowners have taken the position
that regulation of land use for historic preservation purposes is a valid exercise of the police power,
and their requests for declaratory relief concern whether the City Charter or Chapter 211 of the
Local Government Code limit the City’s power. Several amici disagree with the former position,
contending that historic preservation is not within the police powers conferred on municipalities
by Article XI section 5 of the Constitution—commonly known as the home-rule amendment. 3
Because no party has presented the issue raised by amici, it does not provide grounds for
reversal. Our adversary system of justice “depends on the parties to frame the issues for decision
3
These amici include the State of Texas, Texas Public Policy Foundation, and Texas Freedom Caucus. The
Court also received amicus briefs from the Institute of Justice, groups of land development and scenic organizations,
and groups of legal scholars and historical preservation organizations. The Court appreciates the assistance of all
amici.
5
and assign[s] to courts the role of neutral arbiter of matters the parties present.” Pike v. Tex. EMC
Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020) (quoting Greenlaw v. United States, 554 U.S. 237,
243 (2008)). We do not seek out issues but “wait for the cases to come to us, and when they do
we normally decide only questions presented by the parties.” In re Abbott, 601 S.W.3d 802, 809–
10 (Tex. 2020) (quoting Greenlaw, 554 U.S. at 244).
In any event, addressing the issue identified by amici is not necessary to resolve this case.
As explained below, we conclude that Chapter 211 of the Local Government Code applies, and it
provides that “[t]he governing body of a municipality may regulate” changes to “buildings and
other structures” in “areas of historical . . . significance.” TEX. LOC. GOV’T CODE § 211.003(b).
Amici do not challenge this legislative authorization. 4
We therefore proceed to address the issues raised by the parties: whether the Ordinance
complies with the City Charter and Chapter 211. We consider each in turn.
I. The Ordinance does not zone property in violation of the City Charter.
The Houston City Charter does not prohibit the City from zoning altogether, but it limits
the City’s power to adopt a zoning ordinance by requiring six months’ notice of any proposed
ordinance and voter approval in a binding referendum. HOUSTON, TEX., CHARTER, art. VII-b, § 13.
Because the City held no referendum, the Ordinance is invalid if it constitutes zoning under the
Charter.
4
Accordingly, we need not consider whether this statute confers power on municipalities or confirms and
limits the pre-existing police powers they enjoy under the home-rule amendment.
6
A. The ordinary meaning of zoning
The Charter does not define “zoning,” and the parties offer conflicting definitions. The
Homeowners argue that zoning is the regulation of land (including both site and use regulation)
by geographic district, and that the City has engaged in zoning by designating Heights East as a
historic district. The City counters that “zoning” is a technical term referring to a city dividing all
or most of its territory into zones according to a comprehensive plan. Under this definition, the
City’s designation of a mere 1% of its area as historic falls far short of the comprehensiveness
common to zoning regulations.
Both of these arguments emphasize a single feature of zoning—either geographic
districting or comprehensiveness—as dispositive. But zoning regulations have other
characteristics, and given the prevalence of zoning ordinances, not all of these characteristics are
always present. Before deciding whether this Ordinance constitutes zoning in violation of the
Charter’s limitations, we must first have a clear idea of what zoning is.
City charters are construed according to general rules of statutory interpretation. Hunt v.
City of Diboll, 574 S.W.3d 406, 422 (Tex. App.—Tyler 2017, pet. denied); Rossano v. Townsend,
9 S.W.3d 357, 363 (Tex. App.—Houston [14th Dist.] 1999, no pet.). When a statute does not
define a term, we look to its common, ordinary meaning unless a contrary meaning is apparent
from the statute’s language. Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex.
Med. Ass’n, 511 S.W.3d 28, 34 (Tex. 2017). To determine this meaning, “we typically look first
to dictionary definitions and then consider the term’s usage in other statutes, court decisions, and
similar authorities.” Id. at 35. We also consult treatises and commentaries. See, e.g., Rachal v.
Reitz, 403 S.W.3d 840, 845 (Tex. 2013). As we discuss in Part II below, Chapter 211 groups
7
together various types of city regulations under the heading “zoning regulations” and subjects all
of them to certain statutory requirements. But not all of the regulations in that group are traditional
forms of zoning, so we conclude that Chapter 211 does not alter the ordinary meaning of zoning
for purposes of the City Charter. See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex.
2014) (plurality op.) (“The fact that [a] word may sometimes be used to convey a different meaning
is the very reason why we look for its common, ordinary meaning.”).
Black’s Law Dictionary defines “zoning” as the “legislative division of a region,
esp[ecially] a municipality, into separate districts with different regulations within the districts for
land use, building size, and the like.” (11th ed. 2019). Accordingly, a zoning ordinance is defined
as a city ordinance that regulates the use to which land within various parts of the city may be put.
Id. Zoning ordinance. It also allocates uses to the various districts of a municipality, as by
allocating residences to certain parts and businesses to other parts. Id. Defined separately,
“historic preservation” is “[t]he effort to conserve, preserve, and protect artifacts and developed
places, including structures and landscapes, of historical significance.” Id. Historic preservation.
Of all the subcategories of zoning listed in Black’s—including for example spot zoning, density
zoning, and partial zoning—there is no historic subcategory.
Looking beyond legal dictionaries, we see zoning defined as “the act or process of
partitioning a city, town, or borough into zones reserved for different purposes (such as residence
or business).” Zoning, MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam-webster.
com/dictionary/zoning (last visited June 2, 2021). The reference to “zones” makes this definition
less complete, but we can still glean from it that zoning typically restricts the purposes for which
land may be used and covers the entirety of a city. In the legal context, “zoning” can refer to a
8
“municipal or county regulation of land use effected through the creation and enforcement of zones
under local law.” Id.These two definitions emphasize regulation of the uses to which land can be put—that is,
the types of purposes or activities for which the land can be used or the functions it can serve. But
Black’s also mentions regulation of “building size and the like,” which would capture so-called
“site” regulations of the physical height and bulk of structures as well as setback requirements.
Both definitions seem to contemplate that a city is generally zoned all at once. When Black’s
describes zoning as “the division of a region, esp[ecially] a municipality, into separate districts,”
it is the city—not some part of it—that is being divided. Similarly, the Merriam-Webster definition
considers zoning the “act or process of partitioning a city.” These definitions lend support to the
City’s argument that a city cannot be “a little bit zoned.”
Court decisions shed further light on the essential characteristics of zoning. Many courts
define the term by emphasizing regulation of land use, while others identify both use and site
regulations as key features of zoning. 5 Though a question of first impression for this Court, a
5
See, e.g., Bd. of Cnty. Comm’rs of Teton Cnty. v. Mackay Invs., LLC, 413 P.3d 1120, 1123 (Wyo. 2018)
(“Zoning is the process that a community employs to legally control the use which may be made of property and the
physical configuration of development upon the tracts of land located within its jurisdiction.”); Cnty. Council of Prince
George’s Cnty. v. Zimmer Dev. Co., 120 A.3d 677, 685 (Md. 2015) (“[Z]oning is used to describe the process of
setting aside disconnected tracts of land varying in shape and dimensions, and dedicating them to particular uses
designed in some degree to serve the interests of the whole territory affected by the plan.”) (cleaned up); City of Baton
Rouge/Par. of E. Baton Rouge v. Myers, 145 So. 3d 320, 327 (La. 2014) (“Zoning is a general plan designed to foster
improvement by confining certain classes of buildings and uses of property to certain localities. The purpose of zoning
is to reduce or eliminate the adverse effects that one type of land use might have on another.”); Lanvale Props., LLC
v. County of Cabarrus, 731 S.E.2d 800, 811 (N.C. 2012) (“Zoning, as a definitional matter, is the regulation by a local
governmental entity of the use of land within a given community, and of the buildings and structures which may be
located thereon, in accordance with a general plan.”) (cleaned up); Furlong Cos., Inc. v. City of Kansas City, 189
S.W.3d 157, 163 (Mo. 2006) (“Zoning is the exercise of legislative authority as to what land uses are in the interest
of the public for particular areas within the political subdivision.”); Perkins v. Bd. of Supervisors of Madison Cnty.,
636 N.W.2d 58, 67 (Iowa 2001) (“Zoning is the division of land into distinct districts and the regulation of certain
uses and developments within those districts.”); Square Lake Hills Condo. Ass’n v. Bloomfield Township., 471 N.W.2d
9
federal court defined “zoning” in the Houston City Charter to determine the validity of an
ordinance alleged to have zoned parts of the city. N.W. Enters., 27 F. Supp. 2d at 793. Among
other changes, the local ordinance in Northwest Enterprises strengthened location restrictions on
sexually oriented businesses by increasing the minimum permissible distance between those
businesses and protected land uses from 750 to 1,500 feet. Id. at 792. The ordinance also
broadened the class of protected land uses by adding public parks. Id. One argument against the
ordinance was that these location restrictions were zoning regulations prohibited by the Charter
because the City held no referendum and did not provide six months’ notice before enacting them.
Id. at 795.
That court heard the same arguments raised here: that the ordinance did not zone because
it was not comprehensive, and that it did zone because it carved out small geographic districts
around each protected use. Id. at 795–97. The court ultimately concluded that the ordinance did
not zone in the “ordinary, contemporary, common meaning” of the term because “zoning” in the
Charter “refers to the context of a more comprehensive plan than is provided by the locational
321, 326 (Mich. 1991) (“A zoning ordinance is defined as an ordinance which regulates the use of land and buildings
according to districts, areas, or locations.”); City of New Orleans v. Elms, 566 So. 2d 626, 628 (La. 1990) (“The
essence of zoning is territorial division in keeping with the character of the lands and structures and their peculiar
suitability for particular uses, and the uniformity of use within the division.”); State Nat’l Bank of Conn. v. Planning
& Zoning Comm’n of Town of Trumbull, 239 A.2d 528, 530 (Conn. 1968) (“Zoning is defined as a general plan to
control and direct the use and development of property in a municipality or a large part of it by dividing it into districts
according to the present and potential use of the properties.”) (cleaned up); Eves v. Zoning Bd. of Adjustment of Lower
Gwynedd Twp., 164 A.2d 7, 9 (Pa. 1960) (“Zoning is the legislative division of a community into areas in each of
which only certain designated uses of land are permitted so that the community may develop in an orderly manner in
accordance with a comprehensive plan.”); Bogert v. Washington Township, 135 A.2d 1, 3 (N.J. 1957) (“The essence
of zoning is a territorial division in consonance with the character of the lands and structures and their peculiar
suitability for particular uses, and uniformity of use within the division.”).
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restrictions on sexually oriented businesses.” Id. at 795–96. 6
Our precedent offered the court some guidance on whether zoning tends to be
comprehensive. See id. at 796 (citing Comeau, 633 S.W.2d at 793). In Comeau, both parties
conceded that ordinances limiting the locations of mobile homes were essentially zoning
ordinances, so we did not decide when an ordinance constitutes zoning. 633 S.W.2d at 793. Nor
did we define zoning, though we did describe it as “a recognized tool of community planning,
allowing a municipality, in the exercise of its legislative discretion, to restrict the use of private
property.” Id. at 792.
As relevant here, the issue in Comeau was whether the validity of the ordinances would be
tested under the Texas Zoning Enabling Act or Brookside Village’s police powers as a general-
law municipality. Id. at 793 n.4. The Zoning Enabling Act—now part of Chapter 211 of the Local
Government Code—requires zoning power to be exercised as part of a comprehensive plan, and
Brookside Village had no plan. Id. The ordinances were therefore not authorized by the Zoning
Enabling Act, and we analyzed them instead as regulations of land use under the general police
power. Id. Our approach in Comeau indicates that some regulations of land use—like locational
bans on specific uses—are not zoning regulations because they are not comprehensive either
geographically or in establishing what uses are permissible. See N.W. Enters., 27 F. Supp. 2d at
797.
6
As the court of appeals in this case pointed out, 580 S.W.3d at 401 n.2, the district court’s judgment in
Northwest Enterprises was reversed in part on other grounds, but the Fifth Circuit approved the district court’s analysis
on this point. See N.W. Enters., 352 F.3d at 178 (“This ordinance is no zoning regulation. The district court thoroughly
and completely rejected this argument.”).
11
A court of appeals identified similar features of zoning in reviewing a Houston ordinance
requiring wrecking yards to be surrounded by a solid fence or wall, which had to be at least a
specified height. Johnny Frank’s, 480 S.W.2d at 775, 778. The court concluded:
The ordinance with which this case is concerned is not a zoning ordinance. It does
not establish a comprehensive plan by which the city is divided into districts
wherein property is limited to specified uses and it was not passed in accordance
with the procedures specified for the passage of zoning ordinances. This ordinance
does not prohibit any particular use of any property, but merely regulates the use of
property in the operation of an automobile wrecking or salvage yard.
Id. at 778.
Taken together, these cases identify several features common to zoning ordinances:
implementation of a comprehensive plan of city-wide development, division of the city into
geographic districts, and specification of the uses to which land can be put within each district.
Although geographic comprehensiveness is informative, we do not suggest that it is essential,
which would allow the City to skirt its Charter’s notice and referendum requirements by zoning
less than all of its territory. Like the court in Northwest Enterprises, we need not decide at what
point the gradual geographic expansion of land-use regulation becomes zoning. See 27 F. Supp.
2d at 798. The Ordinance does not implicate this concern because, as explained below, it regulates
less than one percent of lots in Houston.
These cases say little about what role the subject matter of the Ordinance—historic
preservation—might play in informing whether it is considered a zoning ordinance. Here we can
turn to federal courts, which considered separately the constitutionality of zoning and historic-
preservation ordinances. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 107 (1978)
(historic-preservation ordinance); Village of Euclid v. Ambler Realty, 272 U.S. 365, 386 (1926)
(zoning ordinance). As the court of appeals recognized, these cases and other authorities illustrate
12
that not all regulation of the historical exterior features of buildings is zoning. See 580 S.W.3d at
407.
In 1965, New York City adopted its Landmark Preservation Law. Penn Cent., 438 U.S. at
109. Like Houston’s Historic Preservation Ordinance, New York’s law allowed for the
designation of landmarks and historic districts and placed restrictions on designated property. Id.at 110–11. Property owners challenged the application of the New York law to their property on
the ground that its designation as a landmark constituted a taking without just compensation under
the U.S. Constitution. Id. at 107. Penn Central presented a different question than this case, but
the Court’s separation of the zoning and historic dimensions of the law is informative for our
purposes. 7 This distinction also explains why the Court heard Penn Central at all given that it had
recognized the constitutional validity of zoning regulations fifty years earlier in Euclid.
The Court emphasized that historic preservation was something new: “[o]ver the past 50
years, all 50 States and over 500 municipalities have enacted laws to encourage or require the
preservation of buildings and areas with historic or aesthetic importance.” Id. This movement
was motivated by the destruction of large numbers of historic structures as well as recognition that
structures with special historic, cultural, or architectural significance enhance the urban
environment. Id. at 108.
7
Thus, our discussion of the New York law at issue in Penn Central should not be understood to indicate
that the protections Texas law provides for private property rights—“one of the most important purposes of
government,” Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977)—are equivalent to those provided under
the Takings Clause of the U.S. Constitution. To the contrary, the Texas Legislature has enacted several statutes that
are more protective of landowners, including the Zoning Enabling Act discussed in Part II below. See also TEX.
GOV’T CODE §§ 2007.001 et seq. (Private Real Property Rights Preservation Act); Tex. Rice Land Partners, Ltd. v.
Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192, 197–98, 204 (Tex. 2012).
13
Fifty years earlier, the Court also saw zoning ordinances as an emerging solution to a then-
novel problem:
Building zone laws are of modern origin. They began in this country about twenty-
five years ago. Until recent years, urban life was comparatively simple; but with
the great increase and concentration of population, problems have developed, and
constantly are developing, which require, and will continue to require, additional
restrictions in respect of the use and occupation of private lands in urban
communities.
Euclid, 272 U.S. at 386–87.
These cases show two movements in two periods. During the first quarter of the twentieth
century, densification forced incompatible uses of land next to one another, leading to the creation
of residential districts in places like the Village of Euclid. See id. at 390. In the decades following,
states and cities took on the new task of preserving buildings with history and aesthetics that
impacted the local environment in a different way. Penn Cent., 438 U.S. at 107; see also Tad
Heuer, Note, Living History: How Homeowners in a New Local Historic District Negotiate Their
Legal Obligations, 116 YALE L.J. 768, 773 (2007) (tracking the rise of historic-preservation
ordinances from 11 in 1957, to 421 in 1975, and 2,300 in 2002).
Treatises also shed light on the historical development of these two means of land
regulation: “By and large, zoning and historic preservation are complementary legal regimes” with
different focuses. 2 RATHKOPF’S THE LAW OF ZONING & PLANNING § 19:14 (4th ed.) (updated
Apr. 2021). Both can regulate site, but zoning ordinances do so through height and bulk
restrictions, while historic-preservation ordinances “focus on the architectural details” that
communicate a building’s significance and its connection to a neighborhood. Id.
These authorities indicate that historic-preservation ordinances do not necessarily
constitute zoning, though we recognize that such ordinances can amount to zoning if they share
14
the common features of zoning we identify. 8 In addition, it has become more common for cities
to include provisions addressing historic preservation within their comprehensive zoning
ordinances. See id. § 19:15.
Early “Euclidean” zoning ordinances—like the one upheld in Euclid—separated
incompatible land uses and restricted the height and bulk of buildings. Id. § 1:4. The same year
Euclid was decided, the Standard State Zoning Enabling Act was republished. It described the
zoning power as the authority to:
regulate and restrict the height, number of stories, and size of buildings and other
structures, the percentage of lot that may be occupied, the size of yards, courts, and
other open spaces, the density of population, and the location and use of buildings,
structures, and land for trade, industry, residence, or other purposes.
U.S. Dep’t of Commerce, A STANDARD STATE ZONING ENABLING ACT UNDER WHICH
MUNICIPALITIES MAY ADOPT ZONING REGULATIONS 4–5 (1926). This description shows that early
zoning ordinances restricted use, height, and bulk but did not expand to aesthetic interests, let alone
historical value. The Texas Zoning Enabling Act authorizes each of these types of regulations,
though the Legislature has incorporated additional regulations over time—including regulation of
buildings in historical areas—as we discuss in Part II below. See TEX. LOC. GOV’T CODE
§ 211.003.
The Standard State Zoning Enabling Act also required that zoning ordinances conform to
a “comprehensive plan” and impose regulations that are “uniform for each class of buildings
throughout each district.” U.S. Dep’t of Commerce, supra, at 6; see TEX. LOC. GOV’T CODE
8
We do not suggest that historic-preservation regulation “must not [be] view[ed] as zoning,” or that such
regulation is “subject to less vigorous review” because of the goals it promotes. Post at __. Rather, we clarify that a
regulation is not zoning simply because it limits alteration of the historical exterior features of buildings, and that
courts should decide whether any regulation constitutes zoning by using a consistent standard: whether it shares the
common features of zoning.
15
§§ 211.004(a), .005(b). The uniformity requirement lives on in state enabling acts, almost all of
which contain similar language. 1 AM. LAW OF ZONING § 9:23.10 (5th ed.) (updated May 2021). 9
On comprehensiveness, there should be “a relationship between the various existing and proposed
physical features of the municipality, such as streets, highways, parks, public buildings, schools,
institutions, bridges, and the zoning districts therein.” RATHKOPF’S, supra, § 1:41. Zoning is
therefore a tool used to implement a city’s broader vision of itself, and anchoring a zoning scheme
within a broader plan prevents it from being used to advance narrower interests ad hoc. Id.
Based on these dictionaries, cases, and treatises, we conclude that the ordinary meaning of
zoning is the district-based regulation of the uses to which land can be put and of the height, bulk,
and placement of buildings on land, with the regulations being uniform within each district and
implementing a comprehensive plan. Zoning regulations also tend to be comprehensive
geographically by dividing an entire city into districts, though this need not always be the case.
B. The Ordinance is not zoning under this definition.
Applying this definition to the Ordinance shows that several key features of zoning are
missing. Significantly, the Ordinance does not regulate the purposes for which land can be used.
Regulation of use is central to all definitions of the term “zoning,” including those in dictionaries,
treatises, other jurisdictions, early zoning ordinances, and statutes modeled after the State Standard
Zoning Enabling Act. Some jurisdictions restrict the definition entirely to regulation of use and
do not contemplate site regulation. See n.5, supra. The Ordinance imposes no direct limits on
9
Variances, conditional uses, and similar changes are permissible so long as they are applied according to
standards that are themselves uniform. Id. Variances are generally limited to “exceptional circumstances” and decided
according to standards established by a zoning ordinance. 8 MCQUILLIN MUN. CORP. § 25:217 (3d ed.) (updated Aug.
2020). For example, the Texas Zoning Enabling Act requires uniform regulations within districts, TEX. LOC. GOV’T
CODE § 211.005(b), but allows for variances in specific cases if they meet certain standards. Id. § 211.009(a)(3).
16
land use; it expressly disclaims such limits by providing that the Ordinance shall not be construed
to authorize the City to regulate the use of any structure or property. 10 HOUSTON, TEX., CODE OF
ORDINANCES, ch. 33, art. VII, § 33-202 (2021). The Ordinance therefore lacks a defining feature—
and in some jurisdictions the defining feature—of zoning regulation.
Our concurring colleagues would also treat site regulations of the size, development, and
placement of buildings as restrictions on the purposes for which land can be used. Post at __. But
the authorities we have reviewed consider use and site regulations to be two separate features that
are common to zoning ordinances. Although site regulations certainly can impact how owners
choose to use their property, they do not directly regulate use of land as that concept is understood
in the zoning context—that is, they do not prescribe the permissible and impermissible purposes
for which land can be used or the activities that can occur there. For example, Dallas has an
exhaustive list of regulated uses: agricultural, commercial and business service, industrial,
institutional and community service, lodging, office, recreational, residential, retail and personal
service, transportation, and utility and public service, among others. DALLAS, TEX., DALLAS CITY
CODE, ch. 51A, §§ 51A-4.200 to -4.221 (2021). 11 And San Antonio goes so far as to define the
term “land use,” calling it “the purpose for which land or structures thereon is designed, arranged,
or intended to be occupied or used, or for which it is occupied maintained, rented, or leased.” SAN
10
We do not take this statement in the ordinance “at face value.” Post at __. Instead, having scrutinized the
entire ordinance, we find no provisions that address the purposes for which land can be used. There are provisions
that impact building placement and appearance, however, which we address below.
11
Austin also “describes and classifies uses in the zoning jurisdiction,” and its use categories are “residential,
commercial, industrial, civic, and agricultural.” AUSTIN, TEX., CODE OF ORDINANCES, ch. 25, § 25-2-1 (2021).
17
ANTONIO, TEX., UNIFIED DEVELOPMENT CODE, ch. 35, app. A, § 35-A101 (2006). 12 This
understanding of land use is also consistent with the earliest zoning ordinances, which identified
three general classes of use—residential, commercial, and industrial—to protect single-family
residential use from commercial and industrial uses. RATHKOPF’S, supra, § 10:1.
The concurrence cites the following passage to support its view that the Ordinance’s site
regulations should be considered land-use regulations:
Public regulation of the use and development of land comes in a variety of forms
which generally focus on four aspects of land use: (1) the type of use, such as
whether it will be used for agricultural, commercial, industrial, or residential
purposes; (2) the density of use, manifested in concerns over the height, width, bulk,
or environmental impact of the physical structures on the land; (3) the aesthetic
impact of the use, which may include the design and placement of structures on the
land; and (4) the effect of the particular use of the land on the cultural and social
values of the community, illustrated by community conflicts over adult
entertainment, housing for service-dependent groups such as low-income families
and developmentally disabled persons, and whether the term family should be
defined in land use regulations to include persons who are not related by blood or
marriage.
Land-use regulation, BLACK’S LAW DICTIONARY (11th ed. 2019) (quoting Peter W. Salsich Jr.,
LAND USE REGULATION 1 (1991)). This passage recognizes that regulation of the type of land use,
as well as site and development regulations, impact aspects of how land is used and its effect on
surrounding land. Id. But regulations of site and development are not themselves use regulations;
put another way, to say that buildings can only reach a certain height does not necessarily mean
they cannot serve a commercial purpose. Instead, site and development regulations typically
12
A treatise contains a similar definition: “The purpose or activity for which land or buildings are designed,
arranged or intended or for which land or buildings are occupied or maintained.” AM. LAW OF ZONING, supra, § 9:56.
A nearly identical definition appears in a practice guide for land-use litigation. 2 HANDLING THE LAND USE CASE:
LAND USE LAW, PRACTICE & FORMS, app. A1 (3d ed.) (updated Nov. 2020) (“The principal purpose for which a lot
or the main building or structure thereon is designed, arranged or intended and for which it is or may be used, occupied
or maintained.”).
18
control physical aspects of buildings in established use districts. Once a use classification is
established, subsequent site or development regulations will necessarily refer back to a use
classification to ensure that prescribed densities, lot sizes, and the like are appropriate for the
permitted types of use. E.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 925–26 (Tex. 1998)
(discussing density requirements for residential uses); cf. Salsich, supra, at 1.
Instead of restricting the purposes for which land can be used, the Ordinance focuses on
protecting and preserving the exterior architectural characteristics of buildings based on historical
significance, distinctiveness, and connection to a neighborhood. The Ordinance restricts: 1) the
alteration, rehabilitation, restoration, and construction of exterior features of buildings in historic
districts; 2) the relocation of buildings within or into historic districts; and 3) property owners’
right to allow their buildings to fall into a serious state of disrepair affecting exterior architectural
features. HOUSTON, TEX., CODE OF ORDINANCES, ch. 33, art. VII, § 33-236. These are not land-
use regulations. And unlike most site regulations, they do not refer back to existing use
classifications.
In addition, like the locational restrictions in Johnny Frank’s and Northwest Enterprises
and the use restrictions in Comeau, the Ordinance is so targeted that it lacks the geographic
comprehensiveness associated with zoning regulations. The record shows that the Ordinance
applies to less than one percent of the total lots in the City. And the Ordinance is not even
geographically comprehensive in the sense that it creates districts for every area of historical
significance in Houston. Rather, it provides a uniform procedure for area residents to follow if
they wish to create their own districts. Id. § 33-222.1(f) (requiring support from owners of 67
percent of all tracts in proposed district).
19
Turning to site regulations of the height, bulk, and placement of buildings, traditional
zoning regulations standardize these parameters across the district. The Ordinance also affects
height, bulk, and placement, so it reaches one of the common subjects of zoning. But unlike
traditional zoning, the Ordinance’s impact on height, bulk, and placement is not standardized;
rather, it is a by-product of its focus on preserving the exterior features of individual structures.
Zoning ordinances typically limit the bulk and size of buildings through minimum setback
requirements and maximum height restrictions. RATHKOPF’S, supra, § 54:2. Their general
purpose is to “prevent the overcrowding of land and avoid undue concentration of population.”
AM. LAW OF ZONING, supra, § 9:56. Height regulations usually “state maximum heights either in
terms of feet or number of stories or both” and define how height must be measured. LAND USE
PLANNING AND DEVELOPMENT REGULATION LAW, § 4:12 (3d ed.) (updated Jan. 2021). Other site
restrictions establish minimum lot size, minimum frontage lots, and limits on the ratio between
floor cover and area of a lot. Id. § 4:13.
The Ordinance does not establish fixed height, size, or location requirements for the district
as a whole and does not seek to prevent overcrowding. Instead, the Ordinance impacts the site by
requiring alterations and additions to a building to remain compatible with the building’s own
existing height, size, and location, and with that of the rest of the district. HOUSTON, TEX., CODE
OF ORDINANCES, ch. 33, art. VII, § 33-241. For new construction in historic districts, site
characteristics must be compatible with the same features of surrounding buildings that contribute
to the historical significance of the area. Id. § 33-242(a). These site regulations function as criteria
for the issuance of a certificate of appropriateness, so their only effect is to limit the alteration,
rehabilitation, restoration, or construction of an exterior feature of a building. Id. § 33-236. They
20
therefore serve to preserve the exterior architectural characteristics of the buildings in a historic
district. 13
As to uniformity, the Ordinance applies to all structures within a historic district. Id.
§§ 33-222.1(b)(3), -236(b). But it does not meet the traditional uniformity requirement that
“property located within the same zoning district must be subject to uniform regulations.” AM.
LAW OF ZONING, supra, § 9:23.10. As discussed above, each property in a historic district is
required to maintain its unique exterior features in a manner that preserves their historical
significance, or to construct new exterior features in a manner that matches the features of
historically significant buildings in the area. Because each building is regulated according to its
own features or the features of nearby buildings, there is no uniform standardization of height,
bulk, and placement across the district as in traditional zoning laws. There are also different
restrictions and procedures that apply to different classes of structures depending on whether each
structure contributes to the historical significance of the area. HOUSTON, TEX., CODE OF
ORDINANCES, ch. 33, art. VII, §§ 33-241, -241.1. 14 And each historic district’s design guidelines
can be unique given that each district has its own architectural characteristics and features. Id.
§ 33-267(b)(3).
13
It is also notable that none of the definitions or discussions of zoning we have surveyed contemplate the
enactment of site regulations without use regulations. To decide this case, however, we need not determine whether
an ordinance must have all of the common features we identify—or to what degree each feature must be present—for
the ordinance to qualify as zoning. Thus, we do not hold—as our concurring colleagues maintain—that an ordinance
must expressly regulate an activity other than property development to qualify as zoning. See post at __.
Though the traditional uniformity requirement might disfavor this variety across a city or within districts,
14
zoning-enabling statutes sometimes allow regulations to vary among districts or classes and kinds of buildings. E.g.,
TEX. LOC. GOV’T CODE § 211.005(b). As we discuss below, legislatures are free to adopt their own definitions of
“zoning” without deferring to the common, ordinary meaning of the term.
21
Finally, the enforcement and penalties provisions of the Ordinance show that it is distinct
from zoning regulation. The Local Government Code provides different remedies to
municipalities for violations of zoning ordinances and for damage to designated historic structures.
Municipalities generally may impose fines up to $500 for violating an ordinance, but that amount
increases to $2,000 for violating zoning ordinances. See TEX. LOC. GOV’T CODE § 54.001(b)(1).
For harm to historic structures—which include historic structures designated by ordinance in the
City of Houston, see TEX. GOV’T CODE § 442.001—the City is entitled to damages equal to the
cost of restoration or construction of a reasonable facsimile of the historic structure. TEX. LOC.
GOV’T CODE § 315.006(c).
The Ordinance incorporates Government Code section 315.006 by reference and
emphasizes the City’s right to enjoin and abate violations. HOUSTON, TEX., CODE OF ORDINANCES,
ch. 33, art. VII, § 33-203(a). Though the Ordinance does allow for fines, they are capped at $500—
far less than the $2,000 allowed in the Local Government Code for violations of a zoning
ordinance. Id. § 33-203(c). By claiming the remedies available for damage to historical structures
under Government Code section 315.006 and effectively disclaiming the remedies available for
zoning ordinance violations, the City crafted an ordinance to preserve historic buildings that is
unlike traditional zoning ordinances.
In sum, the Ordinance does not regulate the purposes for which land can be used, lacks
geographic comprehensiveness, impacts each site differently in order to preserve and ensure the
historic character of building exteriors, and does not adopt the enforcement and penalty provisions
characteristic of a zoning ordinance. For these reasons, the Ordinance is not zoning as that concept
22
is ordinarily understood. We therefore hold that the Ordinance was not enacted in violation of the
City Charter.
C. The Homeowners’ proposed definition of zoning sweeps too broadly.
The Homeowners would have us define zoning as the legal regulation of land by
geographic district and conclude that, in creating a historic district in Heights East, the City has
necessarily engaged in zoning. But the Ordinance is not a zoning regulation merely because it
creates districts with geographic boundaries. By that logic, the City could not regulate floodplain
zones or create Tax Increment Reinvestment Zones and utility districts. It seems implausible that
the City, in passing its 1994 Charter amendment repealing any existing zoning ordinance and
limiting future zoning, intended to repeal all of Houston’s district-based regulation of land. See
N.W. Enters., 27 F. Supp. 2d at 797. Yet that is the result that would follow from the Homeowners’
position.
For example, the City has adopted standards for new construction and substantial
improvements to structures that apply only in special flood hazard areas. HOUSTON, TEX., CODE
OF ORDINANCES, ch. 19, art. III, § 19-32(a). These areas include all land subject to a certain chance
of flooding each year, and this land is subdivided into zones—A Zones, AE Zones, and V Zones
to name a few—that are defined geographically. 15 These construction and improvement standards
are regulations of land by geographic district and would be voided by the Charter under the
Homeowners’ definition of “zoning.”
15
Id. § 19-2 (defining “Special flood hazard area”); see also Harris County Flood Control District, Harris
County Flood Education Mapping Tool, https://www harriscountyfemt.org/ (last accessed May 28, 2021).
23
We also note that state law not only authorizes but mandates that the City participate in the
National Flood Insurance Program, which it has done since 1973. TEX. WATER CODE § 16.3145;
City of Houston, FLOODPLAIN MANAGEMENT PLAN 3 (2016). To participate, the City must adopt
land-use and control measures for flood-prone areas that are adequate under federal guidelines. 42
U.S.C. §§ 4022, 4102. If the City cannot single out and regulate these flood-prone geographic
areas, it cannot comply with state law.
The Homeowners’ definition would also invalidate the City’s rules regarding subdivision
plat requirements in section 42 of the Code of Ordinances, which are authorized by Chapter 212
of the Local Government Code. See TEX. LOC. GOV’T CODE § 212.002 (“[T]he governing body of
a municipality may adopt rules governing plats and subdivisions of land within the municipality’s
jurisdiction to promote the health, safety, morals, or general welfare of the municipality . . . .”). 16
There are three different classes of subdivision plats and different standards for approval of a
platting application for each one. HOUSTON, TEX., CODE OF ORDINANCES, ch. 42, art. II, §§ 42-
20(b), -41 to -43. As with flood zones, these plat requirements impose regulations based on
geographic districting and would be subject to the Charter’s zoning limitations under the
Homeowners’ definition.
Even the Homeowners’ narrowest statement of their definition—the “regulation of size,
area, density, and aesthetics, as well as use . . . based on geographic districting”—would condemn
other district-based regulations. Applying this definition to specific provisions in the Code of
16
Given our disposition, we need not consider whether Chapters 212 or 213 authorize the Ordinance at issue
here.
24
Ordinances of the City of Houston, many of the City’s land-development tools would constitute
impermissible zoning.
For example, the City prohibits certain uses of land in airport land-use tiers. Id. § 9-360.
It also regulates use through minimum-distance buffers by prohibiting, for example, the operation
of an automobile storage lot or metal recycler within 300 feet of a church, school, or residence.
Id. § 28-34. Through these distance buffers, any contiguous group of residences—or of any other
protected-use buildings—becomes a small geographic district within which certain uses are
prohibited.
There are aesthetic requirements for structures directly abutting or within 30 feet of
property used for single-family residences: these structures must maintain a solid masonry wall or
wooden fence, vegetation or non-vegetative permeable cover, at least one tree for every 20 feet of
the property line, and be free from mechanical equipment. Id. §§ 42-1, -272(a)(2). As with use
restrictions based on minimum-distance buffers, these aesthetic regulations fall within the
Homeowners’ definition because they draw a line around areas with single-family residences and
regulate what can happen on either side of that line.
There are also special minimum-lot-size restrictions applying to areas of land in which 80
percent of the lots are developed for single-family residences. Id. § 42-197(c). These areas are
like the districts the Homeowners reside in, with specific regulations applying only within those
districts.
Taking these examples of district-based regulation together, the Homeowners’ definition
of zoning would apply to many aspects of the City’s Code of Ordinances and jeopardize some of
25
the City’s most basic and long-standing tools for planning and development. We see no indication
that the voters meant for the Charter’s restrictions on zoning to have that effect.
* * *
Because the Ordinance does not fall within the ordinary meaning of “zoning,” the
Homeowners failed to carry their burden of showing that the City clearly abused its discretion in
enacting the Ordinance, which regulates historic preservation and does not zone under the Charter.
The trial court therefore correctly rejected the Homeowners’ requested declaration that the
Ordinance is void because it violates the Charter’s limits on zoning.
II. Chapter 211 applies to the Ordinance, but the Homeowners have not shown that the
City failed to comply with certain of its requirements.
The City Charter is not the only basis for the Homeowners’ challenge to the Ordinance:
they also allege that it violates Chapter 211 of the Local Government Code. Chapter 211 imposes
certain procedural and substantive requirements that traditional city zoning regulations must meet.
The Legislature has also chosen to apply these requirements to regulations that would not
traditionally be considered zoning, such as regulation of structures in historically significant areas
and certain pumping and use of groundwater. In particular, section 211.003—entitled “Zoning
Regulations Generally”—lists several different subjects that “the governing body of a municipality
may regulate,” including “the construction, reconstruction, alteration, or razing of buildings and
other structures” in “designated places and areas of historical, cultural, or architectural importance
and significance.” TEX. LOC. GOV’T CODE § 211.003(b). This legislative choice to group together
various types of city regulations and subject them to the same statutory requirements does not alter
the traditional meaning of zoning for purposes of the City Charter, but it does frame the parties’
dispute about whether Chapter 211’s requirements apply to the Ordinance.
26
The City argues that Chapter 211 is only one avenue for cities to regulate historic buildings
and districts: they may also do so under their home-rule police powers. The City emphasizes
Chapter 211’s permissive language and reasons that even if a city “may regulate” historical
buildings and structures under section 211.003(b), it is not required to do so. Because Houston is
a home-rule city, it has the full power of local self-government, and no grant of power in the Local
Government Code can prevent it from exercising the authority incident to self-government. Id.
§ 51.072. According to the City, it was authorized to enact the Ordinance under its home-rule
powers.
The Homeowners agree that the police powers of home-rule cities include regulation of
land for the purpose of historic preservation, but they argue that the home-rule amendment makes
these powers subject to the general laws of the state. See TEX. CONST. art. XI, § 5. In their view,
even if the home-rule amendment and Zoning Enabling Act each confer the power to enact
historic-preservation ordinances, the procedural and substantive limitations in the Zoning Enabling
Act apply to home-rule powers as well.
We agree with the Homeowners that Chapter 211 applies to the Ordinance, given the
language of section 211.003(b) and the principle that home-rule powers are subject to the general
laws of the State. But because the Homeowners have not shown that the City failed to comply
with the substantive and procedural requirements of Chapter 211 at issue here, the trial court
correctly rejected their requested declaration that the Ordinance violates that chapter.
A. Chapter 211’s requirements for zoning regulation extend to regulation of
structures in historical areas.
Like the City Charter, Chapter 211 does not contain a definition of “zoning.” Instead,
subsection 211.003(a) lists several forms of regulation—including size, density, location, and
27
use—that fall within the ordinary meaning of zoning discussed above, and the remainder of the
chapter imposes certain substantive and procedural requirements on cities that adopt such “zoning
regulations.”
The Legislature also decided to treat regulation of buildings in historical areas as a form of
“zoning regulation” under section 211.003(b) that is subject to the same procedural and substantive
requirements. Though this choice is not consistent with the ordinary meaning of zoning, we have
long recognized that the Legislature can define statutory terms however it wishes. E.g., Creative
Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 134 (Tex. 2019).
In Creative Oil, a ranch sued by its oil-and-gas lessee for falsely telling purchasers of
production that the lease had expired sought dismissal under the Texas Citizens Participation Act,
arguing that its statements were related to the exercise of free speech as “matters of public
concern,” which by definition included issues related to “a good, product, or service in the
marketplace.” Id. at 130–31 (citing TEX. CIV. PRAC. & REM. CODE § 27.001). We ultimately
concluded that the oil-and-gas lease was not a matter of public concern as defined in the statute,
but we observed that a different result could follow had the Legislature enacted a different
definition: “The legislature is of course free to define ‘matter of public concern’ to include matters
of purely private concern. For that matter, the legislature could declare that its use of ‘dogs’
includes cats.” Id. at 134.
By including historic-preservation regulations as a type of “zoning regulation,” the
Legislature has shown that it considers ordinances like the City’s to fall within Chapter 211. The
City may be correct in responding that its home-rule power provides an independent source of
authority for the Ordinance, but that power is likewise constrained by Chapter 211’s requirements.
28
Though home-rule municipalities have the full power of self-government, see TEX. LOC. GOV’T
CODE § 51.072(a), the power granted by the home-rule amendment may be limited by other state
laws: “The adoption or amendment of charters is subject to such limitations as may be prescribed
by the Legislature, and no charter or any ordinance passed under said charter shall contain any
provision inconsistent with the Constitution of the State, or of the general laws enacted by the
Legislature of this State.” TEX. CONST. art. XI, § 5. However broad their power, home-rule
municipalities cannot exercise it inconsistently with the laws of the State.
The Legislature did not surrender its own power to regulate in certain areas when it enacted
the home-rule amendment: it may still regulate subjects usually within the powers of a home-rule
municipality. Dall. Merch.’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 491
(Tex. 1993). Sometimes when the Legislature does so, it expressly preempts local regulation. City
of Laredo, 550 S.W.3d at 593. 17
In City of Laredo, the Solid Waste Disposal Act barred local governments from adopting
ordinances to “prohibit or restrict, for solid waste management purposes, the sale or use of a
container or package in a manner not authorized by state law.” Id. at 589 (quoting TEX. HEALTH
& SAFETY CODE § 361.0961(a)(1)). The City of Laredo enacted an ordinance preventing
businesses from providing one-time-use plastic bags, and a group of businesses argued that the
Act preempted the ordinance. Id. at 590–91. Though the City of Laredo had the full power of
self-government under the home-rule amendment, we held the ordinance was preempted by the
express prohibition in section 361.0961(a)(1), which restricted the scope of home-rule cities’
17
The Legislature may also expressly recognize the right of a municipality to regulate the same subject. E.g.,
City of Richardson v. Oncor Elec. Delivery Co. LLC, 539 S.W.3d 252, 262 (Tex. 2018) (citing TEX. TRANSP. CODE
§ 311.071).
29
powers of self-governance. Id. at 598. Similarly, we held in Dallas Merchant’s that a city could
not prohibit the sale of alcohol within 300 feet of a residential area when the Alcoholic Beverage
Code specified that it “shall exclusively govern the regulation of alcoholic beverages in this state”
unless otherwise provided. 852 S.W.2d at 491–92.
In other situations, the Legislature imposes substantive limits or procedural requirements
on a city’s exercise of regulatory power. The Zoning Enabling Act—now part of Chapter 211—
is such a law. See Bolton v. Sparks, 362 S.W.2d 946, 949–50 (Tex. 1962). When the City of
Dallas enacted an ordinance amending the existing zoning classification for railroad rights-of-way,
it did not follow the mandatory procedures in the Zoning Enabling Act. Id. at 949. This Court
struck down the ordinance, noting that those procedural safeguards were “essential to the exercise
of jurisdiction of the City Council” and that municipal ordinances can be enforced only if they
conform to limitations imposed by superior statutes. Id. at 949–50.
We recently followed Bolton’s logic in City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d
634 (Tex. 2013). That case turned on Local Government Code section 212.135, which required a
city seeking to impose a development moratorium to provide a summary of evidence that the
moratorium is “reasonably limited to . . . property that has not been approved for development.”
Id. at 641. A city could not adopt a moratorium without these specific findings. Id. (citing TEX.
LOC. GOV’T CODE § 212.133). This meant that a city could not enact a moratorium affecting
approved developments: it would be impossible for the city to find that a moratorium affected only
property not approved for development in such a case. Id. The required showing that a moratorium
be “reasonably limited to . . . property that has not been approved for development” therefore
limited the authority of municipalities to enact moratoriums.
30
Applying the same reasoning to Chapter 211 and the Ordinance, we conclude that the
City’s authority to engage in historic preservation under its home-rule police powers is constrained
by the requirements that Chapter imposes for historic preservation. This result is intuitive: if the
Legislature expressly permits a city to regulate in an area and requires that it follow certain
procedures when doing so, those procedures apply even if the city already possessed home-rule
authority to regulate in that area.
B. The stipulated facts do not show that the City failed to comply with the
provisions of Chapter 211 at issue.
Having concluded that Chapter 211 applies to the Ordinance, we next consider whether the
City complied with its requirements. The Homeowners have a heavy burden in challenging the
Ordinance and must show conclusively that the City acted without authority in adopting it. Tippit,
616 S.W.2d at 176; Thompson v. City of Palestine, 510 S.W.2d 579, 581 (Tex. 1974). At the bench
trial, which was conducted on stipulated facts, the Homeowners focused their challenges to the
City’s compliance with Chapter 211 on two sections: 211.004 and 211.007.
Section 211.004(a) provides that “zoning ordinances”—which, for Chapter 211 purposes,
include historic-preservation regulations like these—must be adopted in accordance with a
comprehensive plan. In arguing that Chapter 211 applies to the Ordinance, the Homeowners assert
that “Houston actually does have the requisite planning to meet the legal requirements of [Chapter
211] and should be estopped from contravening its public proclamations.” More specifically, the
Homeowners contend that the “well-thought-out and extensive [Ordinance] . . . evidences a
sufficient degree of planning to meet the statutory requirement.” We agree.
Comprehensive zoning ordinances satisfy the “comprehensive plan” requirement of
section 211.004. Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 294–95 (Tex. App.—Dallas
31
1989, writ denied); see also City of University Park v. Benners, 485 S.W.2d 773, passim (Tex.
1972). Here, the Ordinance is comprehensive with respect to the subject that the City has chosen
to regulate under section 211.003(b): changes to structures in historical areas.
The Ordinance lays out in detail which changes are prohibited, which are allowed, and the
procedures for carrying out allowed changes. Prohibited changes include those at issue here—the
rehabilitation, alteration, restoration, or construction of exterior features of contributing structures
in historic districts without a certificate of appropriateness—as well as similar changes to
landmarks, excavation of archaeological sites, and the demolition and relocation of any of these
places. HOUSTON, TEX., CODE OF ORDINANCES, ch. 33, art. VII, § 33-236. The Ordinance also
requires that property owners not allow their landmarks and contributing structures to fall into a
state of disrepair resulting in the deterioration of exterior features. Id. § 33-236(i). The exemptions
are similarly thorough: certificates of appropriateness are not required for changes to fencing,
gutters, downspouts, storm windows, window screens, screen doors, porch ceiling fans, HVAC
units, and landscaping, to name a few. Id. § 33-237(a).
These prohibitions apply only to changes made without a certificate of appropriateness.
The Ordinance also provides the form and procedure for submitting applications for certificates of
appropriateness as well as the criteria for issuing them. Id. §§ 33-238 to -240. The Ordinance lays
out the specific criteria applicable to each kind of change to historical buildings and sites, from
new construction in historic districts to the demolition of landmarks. Id. §§ 33-242, -247.
The criteria for each are tailored and extensive. For new construction in historic districts,
for example, the certificate will only issue upon findings related to the distance of the building
from property lines, the compatibility of exterior features with those of contributing structures, and
32
the scale, proportions, and height of the new construction relevant to existing contributing
structures. Id. § 33-242. For changes to exterior features of an existing structure in a historic
district, eleven separate findings are required. Id. § 33-241. And if an application for a certificate
of appropriateness is denied, there is an appeal process carried out before a board created for that
purpose. Id. § 33-253.
Collectively, these examples show that the Ordinance is a comprehensive plan for the
regulation of changes to buildings in historic districts. The Homeowners’ own position that the
Ordinance is a comprehensive plan under section 211.004 reinforces this conclusion.
The Ordinance does not fail the comprehensive-plan requirement simply because many
parts of the City do not contain historic buildings or districts. Some of the property features a city
may regulate under Chapter 211—like the height, size, location and use of buildings and
population density—are common throughout an entire city. TEX. LOC. GOV’T CODE § 211.003.
But the Legislature also contemplated regulations that will affect only certain areas. For example,
groundwater pumps can be regulated under section 211.003(a)(6), but these pumps are only placed
where groundwater collects. Similarly, historically significant buildings are not located
everywhere throughout an entire city, so regulating these buildings will only impact certain areas.
But the Ordinance can apply to any geographic area within the City if it meets the generally
applicable criteria for designation as a historic district, has sufficient public support from affected
landowners, and is approved by the Commission and City Council. HOUSTON, TEX., CODE OF
ORDINANCES, ch. 33, art. VII, §§ 33-222.1, -224, -225. The districts themselves must be
contiguous land masses without carve-outs, id. § 33-222.1(3), and once the designation is made,
properties within historic districts cannot be singled out and exempted from historic-preservation
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regulation. Cf. id. § 33-228. The prohibited activities within historic districts and the respective
criteria for designation of historic districts and issuance of certificates of appropriateness apply to
all designated historic districts, showing that the Ordinance’s effects are not strictly localized but
apply throughout the city. See id. §§ 33-224, -226, -240, -241.
The Ordinance is therefore a city-wide, comprehensive plan to regulate the alteration,
construction, and razing of buildings in historic areas. See TEX. LOC. GOV’T CODE § 211.003(b). 18
Because the Legislature considers historic-preservation regulations to be zoning regulations under
section 211.003(b) of the Local Government Code, we hold the Ordinance is a zoning regulation
adopted in accordance with a comprehensive plan under section 211.004(a). 19
The Homeowners also challenge the City’s compliance with section 211.007(a). That
provision requires a home-rule municipality to appoint a zoning commission to implement the
regulations authorized by Chapter 211. Because the Legislature has classified historic preservation
as a type of zoning regulation for purposes of Chapter 211, we conclude that the Houston
Archaeological and Historical Commission serves as a zoning commission under section
211.007(a).
Appointed zoning commissions are required to recommend boundaries and regulations for
zoning districts. Id. § 211.007(a). They must make a preliminary report, hold public hearings
18
A contrary holding that regulation of historic areas wherever they appear in a city fails the comprehensive-
plan requirement of section 211.004(a) would impermissibly nullify section 211.003(b), which expressly authorizes
the regulation of changes to structures in areas of historical significance.
We note that the City argues the Ordinance is not comprehensive in the sense that it does not encompass a
19
wide range of land development within districts throughout the entire city. But that argument does not address
comprehensiveness as to the specific subject being regulated here: changes to structures in historic areas.
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before submitting recommendations to the governing body of the municipality, and notify owners
of property in or near those zones of hearings beforehand. Id. § 211.007(b), (c).
Under the Ordinance, the Houston Archaeological and Historical Commission does each
of these things. It makes recommendations to the City Council by identifying areas with the
potential for historic-district designations and initiating the designation process. HOUSTON, TEX.,
CODE OF ORDINANCES, ch. 33, art. VII, § 33-214(3). The Commission also reviews applications
submitted by others for designation of landmarks and historic districts and must make a
recommendation on these applications before the Council decides whether to make the
designation. Id. § 33-221(c). For each application, the Commission must hold a hearing and notify
affected property owners beforehand. Id. §§ 33-225, -226.
In sum, the Commission does exactly what Chapter 211 requires a zoning commission to
do. The Homeowners have therefore failed to show that the Ordinance violates section 211.007(a)
on the ground that the City does not have a zoning commission.
We note that Chapter 211 includes other requirements for regulating structures in
historically significant areas. We do not address those requirements, however, because the
Homeowners have not sought declarations or supplied evidence regarding whether the City
complied with them. Deciding only what is before us, we hold that the trial court correctly rejected
the Homeowners’ requested declaration that the Ordinance is void for failure to comply with
Chapter 211.
CONCLUSION
The Homeowners sought declarations that the Ordinance is void on two grounds, and we
have concluded that both fail. The City Charter’s limitations on the power to zone do not apply to
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the Ordinance’s historic-preservation regulations because they do not fall within the ordinary
meaning of “zoning.” Though the same regulations do fall within the scope of Chapter 211 as set
by the Legislature, the Homeowners have not demonstrated that the City failed to comply with
section 211.004 or 211.007. Because the Homeowners did not clearly demonstrate that the
Ordinance is void under either the Charter or Chapter 211, we affirm the judgment of the court of
appeals.
_____________________
J. Brett Busby
Justice
Opinion delivered: June 4, 2021
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