Appeal from the County Civil Court at Law No. 1 Harris
County, Texas Trial Court Case No. 1043863
consists of Justices Keyes, Higley, and Landau.
V. Keyes Justice
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.
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.
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is hereby repealed.
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
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.
Homeowners own property in Heights East, which was designated
as a historic district by a resolution of the City Council on
February 19, 2008.
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
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.
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.
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
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.
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.
Sustain quality infrastructure.
Nurture safe and healthy neighborhoods.
Connect people and places.
Support our global economy.
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.
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."
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.
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.