In a prior post on the history of zoning in Pennsylvania, Jamie Strong cited the Pennsylvania Department of Community and Economic Development, stating less than a third of Pennsylvania’s 2,561 municipalities have no zoning regulations.  He wrote that, in general, it is the “more rural, less developed and less populated municipalities” in Pennsylvania that lack zoning.  As of 2015, 98.2% of Pennsylvania’s urban population was zoned while only 68.9% of the rural population was zoned.

Such is not the case in Texas, where Houston, the state’s largest city, is “without” zoning.  Houston is the butt of many zoning jokes – all of which are as dull as you’d expect a zoning joke to be.  Nonetheless, it is a fascinating case study showing us how our cities and towns might look without the Pennsylvania Municipalities Planning Code and local land use ordinances.  (Google “pictures of Houston zoning.”)  I recently read a few articles examining the effects of how Houston has handled development over the last 100 years.  Two of the articles led me to the conclusion that Houston’s land use problems, whether real or perceived, have more to do with its historical lack of a comprehensive scheme – most notably, a comprehensive plan, than with a lack of zoning regulations.

Ryan Holeywell argues in his piece, Forget What You’ve Heard, Houston Really Does Have Zoning (Sort Of) (September 2015), that Houston has “de facto” zoning.  Quoting Professor Matthew Festa throughout the article, Holeywell writes that Houston has many zoning regulations, including regulations for density, lot sizes and buffers.  A unique quirk that is in complete contrast to Pennsylvania’s land use scheme, is that Houston utilizes the public enforcement of private deed restrictions to establish and regulate permitted uses.  In Houston, it is left to developers and neighbors to determine what uses are appropriate for their area by incorporating restrictions into their deeds.

Nolan Gray states in his piece Are Houston’s Deed Restrictions “Basically Zoning”? (April 2018) that, despite “superficial similarities,” Houston’s deed restrictions are better than zoning in three significant ways.  First, they don’t apply to the entire City.  In fact, studies have shown that only 25% of Houston’s land area is subject to deed restrictions and that most of those areas are single-family residential neighborhoods.  Second, per Gray, deed restrictions are created by individuals that have “the information and incentives to get the regulations right.”  By “right,” Gray means achieving the maximum property value for a lot or lots, notwithstanding other community needs.  Finally, Gray argues deed restrictions with incorporated expiration dates are flexible, allowing neighborhoods to quickly “adapt to changing market conditions.”

Festa and Nolan probably would agree that Houston’s land use scheme is just fine and has allowed for flexible development.  In a world where new uses pop up daily and change occurs almost overnight, maybe Houston’s scheme is superior.  Or maybe not.  Holeywell concludes: “What Houston might have is the worst of both worlds: all the burdens of regulation and none of the foresight to use it effectively. ‘It works like zoning,’ Festa said, ‘but it’s not the product of a comprehensive plan.’”  And therein lies the rub.  Maybe Houston doesn’t have a zoning problem, but rather a planning problem.

Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.