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This is my first Land Use Update column, and I intend to discuss recent cases, recent developments, and periodical articles. I begin with cases that consider the scope and purpose of zoning.
Historic Preservation
The first case is an historic preservation case. Historic preservation is an essential function for local governments. They can adopt historic preservation ordinances that require landmark preservation and authorize the creation of historic districts. Historic preservation ordinances stand alone outside the zoning ordinance and are administered by a separate historic preservation commission. These differences from zoning raise a problem. Is historic preservation a type of zoning? If not, what is it, and why? Does it make a difference?
A Texas Supreme Court case, Powell v. City of Houston, 628 S.W.3d 838 (Tex. 2021), considered these questions. Homeowners in an historic district brought a declaratory judgment action claiming the historic district ordinance was a zoning ordinance and was void because the city charter required six months' notice of a proposed zoning and voter approval. The historic district ordinance was not voter-approved. No zoning ordinance has ever been approved for Houston. Although the voting requirement is unique to Houston, similar problems can occur in other municipalities where homeowners could claim an historic preservation ordinance violates other zoning ordinance requirements, such as a requirement that zoning must be in accordance with a comprehensive plan or a statutory notice requirement.
The Texas court rejected the homeowners' claim, held that the historic district ordinance was not a zoning ordinance, and provided a detailed discussion of what zoning means based on dictionary definitions, court decisions, and treatises. After reviewing Texas and lower federal court decisions, the court considered two major Supreme Court cases that upheld the constitutionality of zoning and historic preservation. Village of Euclid v. Ambler Realty, 272 U.S. 365 (1926), upheld a comprehensive zoning ordinance, and Penn Central Transportation. Co. v. New York City, 438 U.S. 104 (1978), upheld New York City's historic landmark ordinance.
Reliance on these two land use decisions was unique because the Texas court used them as a guide to history. The court read them to mean that land use movements had two historical periods, an earlier period concerned with incompatible uses that led to the adoption of zoning, and a...