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Powell v. City of Houston

Court of Appeals of Texas, First District

June 25, 2019


          On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Case No. 1043863

          Panel consists of Justices Keyes, Higley, and Landau.


          Evelyn V. Keyes Justice

         The appellants, Kathleen Powell and Paul Luccia (collectively, the Homeowners), own homes in a designated historic district, the Heights East area of the City of Houston (the City). The Homeowners sued the City, asserting that the City's Historic Preservation Ordinance (HPO) violated the Houston City Charter's prohibition against zoning regulations. Following a bench trial, the trial court rendered a take-nothing judgment in favor of the City on the Homeowners' claims. In three issues on appeal, the Homeowners argue that: (1) the City's HPO and regulations for geographic historic district and land use constitute zoning; (2) the City's historic district zoning laws violate the Houston City Charter; and (3) the City's historic district zoning laws violate the Texas Legislature's Zoning Enabling Act.

         Because we conclude that the HPO does not constitute a zoning measure, we affirm the trial court's take-nothing judgment in favor of the City.


         The City is a home-rule city. In 1994, the City amended the City Charter to provide that it may only adopt zoning ordinances after it publishes any proposed ordinance for public hearings and debate during a six-month waiting period and then holds a binding referendum at a regularly scheduled election. Specifically, the Charter was amended to provide:

The City of Houston shall have the power to adopt a zoning ordinance only by: (a) allowing a six month waiting period after publication of any proposed ordinance for public hearings and debate and (b) holding a binding referendum at a regularly scheduled election. Any existing zoning ordinance is hereby repealed.

         The Charter does not define what constitutes a zoning ordinance. The Charter further provides that "no ordinance shall be enacted inconsistent with the provisions of this charter."

         In 1995, the City Council adopted the HPO. This ordinance provided for the creation of historic districts and required that property owners in those designated historic districts must apply to the Houston Archeological and Historical Commission (HAHC) for a "certificate of appropriateness" before demolishing, modifying, or developing property situated within a historic district. However, if the HAHC denied a certificate of appropriateness, after a waiting period of ninety days, the property owner was entitled to a "90-day waiver certificate" allowing the owner to make the proposed changes to the property located within the designated historic district without further approval from the HAHC. The HPO was subsequently amended in 2005 to limit the availability of 90-day waiver certificates in certain instances.

         The Homeowners own property in Heights East, which was designated as a historic district by a resolution of the City Council on February 19, 2008.

         In 2010, the City again amended the HPO (the 2010 amendments). The 2010 amendments included provision that eliminated property owners' right to obtain "90-day waiver certificates" for any property located in a designated historic district and updated guidelines regarding new construction and alteration to both historic and non-historic structures in the designated historic district, including Heights East.

         Also in 2010, the City passed an ordinance (the Transition Ordinance) establishing a one-time "process for the reconsideration of the designation of historic districts," which provided a process for reconsidering whether districts previously designated as historic districts under the rules prior to the 2010 amendments should continue to be governed by the HPO as amended. The reconsideration process was triggered when more than 10% of a historic district's property owners joined in the request, requiring the City's Director of City Planning and Development Department (Director) to consider the request in light of several factors such as the criteria for designation of the historic district, any changed circumstances identified in the request for reconsideration, and the current level of support for the designation of the historic district. The Director was then required to make a recommendation to the City Council, including recommending that the City Council take no action with respect to the designation of the historic district, that it repeal the resolution creating the historic district if the owners of 51 percent of the tracts in the designated historic district indicated that they do not support the continued designation, or that it amend the resolution designating the historic district to reduce its boundaries. The Transition Ordinance further provided that the City Council would consider the Director's recommendation and the criteria considered by the Director in making the recommendation and then decide whether to accept the Director's report and take the recommended action. The Transition Ordinance stated that the City Council's decision shall be final.

         Shortly after the Director made the reconsideration form available, more than 10% of property owners in Heights East moved for reconsideration of the neighborhood's status as a designated historic district. The Planning Department mailed each property owner in Heights East notice of a public meeting and a survey regarding whether they supported repeal of Heights East's designation as a historic district. After the deadline for returning the survey had passed, the Director found that, of the 780 tracts in Heights East, only 193 requested repeal of the historic designation. The Director prepared a recommendation to the City Council that it "tak[e] no action with respect to the designation of the historic district." The City Council, in an 8-7 vote, rejected the Director's recommendation as to the Heights East district, but the City Council nevertheless failed to pass any further ordinances or resolutions with respect to Heights East's status as a designated historic district. Thus, the City has continued to apply the HPO, as amended by the 2010 amendments, to Heights East.

         In 2014, the Homeowners filed suit seeking a declaratory judgment that the HPO is void and unenforceable because it violates the City Charter's prohibition against zoning and that the HPO violates provisions authorizing municipal zoning as set out in Texas Local Government Code chapter 211.[1]

         The case was tried to the bench in February 2018, with the parties noting that the "facts are undisputed and the case concerns pure questions of law." The Homeowners argued that the HPO, as amended in 2010, "is a zoning law that regulates the use of property in designated geographical districts" and, thus, is void because the City Charter prohibits the City from passing "zoning ordinances" except under limited circumstances that the parties agree did not occur here. The Homeowners also asserted that the HPO failed to comply with the requirements of Texas Local Government Code chapter 211.

         The Homeowners presented evidence that the City of Houston adopted a "General Plan" in 2015 that describes an overall vision for the City, with the intention of coordinating and informing the development of future plans, policies, and regulations. The plan, called "Plan Houston," includes (1) a vision statement that provides an overview of the City's immediate and long-term objectives for economic development, fiscal responsibility, infrastructure, development, redevelopment, public health, safety, welfare, and quality of life; and (2) implementation and coordination strategies to achieve the objectives of the vision statement. It identifies twelve "Core Strategies" for considering future development, stating:

In order to achieve the community's vision and goals and to provide for the needs of all Houstonians, the City of Houston will do the following:
Spend money wisely.
Grow responsibly.
Sustain quality infrastructure.
Nurture safe and healthy neighborhoods.
Connect people and places.
Support our global economy.
Champion learning.
Foster an affordable city.
Protect and conserve our resources.
Communicate clearly and with transparency.
Partner with others, public and private.
Celebrate what's uniquely Houston.
Greater detail on each Core Strategy, including Actions necessary to implement each strategy, can be found on the following pages. The numbering of actions on the following pages does not indicate priority or importance.

         The Plan Houston report identified particular "actions" and "related goals" for each core strategy. For example, under "actions" for "[c]elebrate what's uniquely Houston," the plan listed, among other items, "[m]aintain a plan for supporting arts and culture," "[c]elebrate Houston's past and present diversity and culture through City activities, events and publications," and "[p]reserve historic resources." The plan identified as a "related goal" the need to build "[a] community that respects its history," and it indicated that an appropriate indicator of the City's performance under this measure is the number of "buildings and sites listed in the National Register of Historic Places, State and or City Historic Designation[s]" and "[s]quare mileage of local historic districts."

         By contrast, the City relied on the language of the ordinance itself in arguing that the HPO is not a zoning ordinance. The City introduced into evidence the language of the HPO and its subsequent amendments, asserting that the HPO was not adopted pursuant to a comprehensive plan, nor did it include measures associated with zoning in the sense intended by either the Local Government Code or the City Charter. The City pointed to the relatively small impact the HPO has had on the City as whole. It presented evidence that the City is approximately 670 square miles in size and that the HPO is applicable to a total of approximately 2.4 square miles. The HPO thus applies to approximately 0.4% of the land within the City. Similarly, the City identified approximately 6, 706 parcels of land out of the 646, 616 individually-platted and individually-owned parcels of land in the City that are located in designated historic districts subject to the HPO. By this calculation, the HPO affects a little more than 1% of the parcels of property in the City. Thus, the City argued that, because it has had such a limited impact throughout the City, the HPO does not constitute zoning pursuant to a comprehensive plan. The City also presented the trial court with evidence of the sort of comprehensive plans used to implement zoning measures in other municipalities like Austin, Dallas, and San Antonio as a point of contrast with the historic preservation plans of the City of Houston.

         The trial court considered the documentary evidence submitted by the parties. It rendered judgment in favor of the City and ordered that the Homeowners take nothing on their claims seeking to invalidate the HPO. This appeal followed.

         Validity ...

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