The Supreme Court of Texas Asked to Consider “De Facto” Zoning in Houston
The City of Houston is unique. On three occasions, the people have voted by referendum to prohibit zoning. However, the City has attempted to work around that prohibition through the Historic Preservation Ordinance (HPO). This law allows certain “historic” neighborhoods to regulate land use. Since 2014, my colleague Matt Festa has been litigating a challenge to HPO. He contends that the HPO is a form of “de facto,” or “backdoor” zoning.
This case involves important issues of Texas State law regarding the statutory authority delegated by the Texas Legislature; the State’s legal limits on the powers of municipal corporations; state-delegated local land-use regulatory power; and the individual property rights of all persons under the Constitutions of the United States and the State of Texas. The people of Houston have—three times in the past century—mandated that zoning, a regulatory tool that prescribes different rules based on map-based regulation, is illegal as a municipal power. See, e.g., Teddy M. Kapur, Land Use Regulation in Houston Contradicts the City’s Free Market Reputation, 34 Environmental Law Reporter 10045, 10057-61 (2004). The people of Houston h
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