Don’t say the “Z-word”

Forget everything you think you know about Houston. Renowned as the nation’s largest city with no zoning laws, it has been a magnet for developers drawn to its lack of regulatory oversight. However, the reality of the city’s unique urban planning landscape is more than meets the eye. 

Houston City Council voted unanimously on January 25 to approve an ordinance amending its residential “buffering” amid concerns over the impact of commercial developments near homes. 

Here are the key takeaways:

• The updated ordinance took effect February 25 and requires a “buffer” of 15 feet for developments taller than 65 feet that are near single-family and small-scale, three to eight unit, multifamily residences.
• The previous buffering ordinance, which passed in 2011, required buildings over 75 feet, to maintain a buffering zone of 30 to 40 feet from single-family home sites 3,500 square feet or larger.
• This amendment expanded the previous code to include all single-family home sites regardless of size. 
• The ordinance applies to all new mid-rise and high-rise projects, but there are exceptions. Exemptions are allowed when it can be proven that following the ordinance would create “undue hardship” or make a project infeasible due to “unusual physical characteristics.” If the owner of the property can prove a vested right to the building line or lot size established by previous ordinances, they can also be exempted.

This buffering ordinance is the latest edition in the city’s history of enacting land-use regulations without using the word “zoning.” Urban planners and scholars have long debated whether Houston has zoning codes that are clad in terms like “buffering.” The reality is that Houston has created a host of regulations that govern what can be built where. 

“Perilously close to the line”

Houston has built a reputation as a developer-friendly and pro-business haven, and the presence of zoning complicates that. City officials are skittish about what one called “the Z-word.” For good reason, considering zoning is explicitly prohibited by the city’s charter unless approved via referendum. Yet, developers and real estate executives take a mixed view.  

“I refer to it as micro-zoning … we do it piecemeal, mostly looking for a level of support along the way,” said Bill Baldwin, owner of boutique real estate firm Boulevard Realty and a member of the Walkable Places Committee. “I see a lot of positives in some form of zoning that gives clarity to what can happen in certain areas. Houston is a vast geographical area, and what we do know is, one-size-fits-all doesn’t work anymore.” 

Unwavering support among top developers in the city helped bolster the ordinance, sources close to the buffering amendment told The Real Deal. Zoning remains the boogeyman in the Bayou City, but by name only, as it creeps toward increasing application. 

This lack of zoning has resulted in Houston using other legal and governance mechanisms, such as ordinances, a building code and deed restrictions to impose rules that function as a form of de facto zoning.

“The idea that the city has no zoning has always been a misnomer,” said Robert Stein, Rice University professor of urban politics and fellow at the Baker Institute for Public Policy. “The way to think about it is, Houston has some type of land-use regulations … we just don’t do it in some of the more conventional or widespread uses.”

Historically, these restrictions have enabled homeowners and businesses to exercise a higher level of control over the character of their communities and influence development. For example, Houston has historic districts whose boundaries limit what developers can build or modify without approval from the Houston Archaeological and Historical Commission.

In the 2021 court decision, Powell, et al., v. City of Houston, the Texas Supreme Court ruled that the city’s historic preservation ordinance was not “zoning” in the traditional sense due to a lack of “comprehensive” application. The court, which itself had to consult the Merriam-Webster dictionary, affirmed these districts were, however, subject to provisions outlined in the state’s Chapter 211 Municipal Zoning Authority. Chapter 211 gives the city and other municipal governments the authority to establish and enforce zoning regulations and land-use restrictions.

Four justices on the nine-member court did file a concurring opinion suggesting that future regulations by the city “should be held under closer scrutiny” as the historic preservation ordinance’s land-use regulations stand “perilously close to the line” of traditional zoning. Mayor Sylvester Turner and other city officials have since expressed support for expanding these historic districts in order to protect marginalized racial and ethnic communities from the effects of gentrification.

The city has no plans to introduce zoning, said Margaret Wallace Brown, director of Houston’s Planning & Development Department. Ordinances like the buffering amendment are examples of simple development regulations, which the city has the right to introduce, she said.

“We, as a city, don’t dictate how you use your land. You tell us how you’re going to use it, and then we tell you what the development regulations are,” she said. “We take land development codes that encourage properties to be good neighbors. We’re just strengthening protections for residents … I don’t see the connection to zoning.”

That’s all semantics, said Rice University’s Stein. While adopting verbiage like “buffering” or “micro-zoning” to distance itself from “zoning,” it’s clear the city is moving toward fundamental change, he said.

“I would call [these] zoning ordinances,” said Stein, whose wife serves as the chair of the Planning & Development Committee. “It’s not what we call comprehensive land regulation like you’d see in other major cities, for example. But, in my view, what you’re beginning to see is creeping land-use regulations.”

Rising waters, shifting attitudes

Some argue that the city’s lack of more specific zoning codes has led to suburban sprawl and made it more susceptible to extreme flooding. Proponents of unrestricted development have long defended the city’s approach, citing the benefits of economic growth and innovation.

Homebuilder Bradley Smith, president and CEO of Layne Kelly, believes the city’s adoption of stricter regulations borders on zoning restrictions. From floodplain and drainage ordinances increasing costs of development, to the recent amendment expanding buffering in residential areas, he thinks it could change the city’s long-held reputation — and complicate his business.

“The city is doing more of those regulations on land use. They’re always saying we don’t have zoning, but then here’s your land-use regulation,” Smith said. “It’s a slippery slope.” 

Others point toward the city’s unrestrained growth as exacerbating the $35 billion in damages Hurricane Harvey caused in 2017. The lack of zoning has made it challenging to control and align development across the metropolitan area with overall flood mitigation policies. 

“We see where ‘free-for-all’ has gotten us in the past. We can improve. Over-regulation can hurt, but where there are high levels of support, at least 67 percent, regulation is a great tool,” Baldwin said. 

But that high level of support is rare. Houstonians have repeatedly rejected every attempt to adopt comprehensive zoning. Voters first rejected the proposition in 1948, followed by another referendum in 1962. The most recent effort was narrowly defeated, by fewer than 7,000 votes, in 1993. As a result, Houston has developed a unique approach to land use laws and zoning requirements that involve local homeowners collectively imposing rules to control and shape development as issues arise.

“Land use regulation has been around for racial segregation reasons here in the city. More recently, we’re seeing them protect land from bad weather,” Stein said. “When you start having flooding, people want to be able to control and protect their property. And so one of the things we’re seeing more and more is the [metro area] being very aggressive about where you can build.”

The city revised drainage and infrastructure design, such as increasing the elevation requirement for new structures from one foot to two feet in flood hazard areas. Houston and its surrounding areas have had to rely on unique government mechanisms to address these issues.

For example, after Hurricane Harvey devastated the southwest suburb of Friendswood, developers wanted to continue to construct new commercial and residential properties. Pushback from residents caused the local city council to buy up properties in an attempt to regulate land use.

Townhomes prone to flooding in the subdivision of Frenchman’s Creek were demolished to create greenspace in the hopes of restoring the “natural function” of the area’s floodplain, according to city secretary Leticia Brysch. Additional drainage projects are currently still being developed in an attempt to reduce mass flooding. 

Many developers welcome new regulations to combat the scourge of inclement weather because they say costs of unregulated development outweigh the economic benefits.

“You can’t zone a whole city overnight; you got to do it slowly. And you got to pick your fights,” Stein said. “If you were to look at all the ordinances and things like the historic preservation districts that have been adopted over the last quarter century, each time building on the previous one, we are progressing toward [comprehensive zoning]. It’s mostly baby steps: nothing really large, but we’re progressing.”