Texas Supreme Court rules in favor of Houston's historical preservation ordinance

The Texas Supreme Court ruled in favor of the city of Houston June 4 in a case dating back to 2014 over whether the city is allowed to enforce its historical preservation law—an ordinance passed in 1995 in an effort to protect historical neighborhoods and landmarks from demolition and alteration. (Courtesy Fotolia)
The Texas Supreme Court ruled in favor of the city of Houston June 4 in a case dating back to 2014 over whether the city is allowed to enforce its historical preservation law—an ordinance passed in 1995 in an effort to protect historical neighborhoods and landmarks from demolition and alteration. (Courtesy Fotolia)

The Texas Supreme Court ruled in favor of the city of Houston June 4 in a case dating back to 2014 over whether the city is allowed to enforce its historical preservation law—an ordinance passed in 1995 in an effort to protect historical neighborhoods and landmarks from demolition and alteration. (Courtesy Fotolia)

The Texas Supreme Court ruled in favor of the city of Houston June 4 in a case dating back to 2014 over whether the city is allowed to enforce its historical preservation law—an ordinance passed in 1995 in an effort to protect historical neighborhoods and landmarks from demolition and alteration.

A total of 22 neighborhoods and 400 landmarks are protected by the law, including in the Houston Heights, Old Sixth Ward and the First Montrose Commons.

The suit was first brought by Heights-area property owners Kathleen Powell and Paul Luccia in 2014. A trial court and court of appeals both ruled against the homeowners, leading them to appeal the case to the Texas Supreme Court, which agreed to hear the appeal in October.

The case from Powell and Luccia centered on the argument that the city's preservation ordinance constituted a zoning ordinance and was therefore unenforceable because zoning ordinances are banned by Houston's charter. Matt Festa, a law professor who is representing Powell and Luccia in the case, previously told Community Impact Newspaper that his clients were not opposed to historical preservation, but said the city had gone about implementing it in the wrong way.

In a majority opinion issued by Justice Brett Busby, the Texas Supreme Court ruled Houston's preservation ordinance did not constitute a zoning ordinance. The ordinance, Busby wrote, also does not regulate the purposes for which land can be used, a key element of zoning law.


Although the ordinance does regulate size, development and placement of buildings on a site, Busby wrote those regulations were distinctly separate from regulating the use of the land. Rather than setting fixed heights, sizes or locations for buildings, the ordinance instead requires alternations and additions to be compatible with the rest of the district, Busby pointed out.

"
In sum, the ordinance does not regulate the purposes for which land can be used, lacks geographic comprehensiveness, impacts each site differently in order to preserve and ensure the historic character of building exteriors, and does not adopt the enforcement and penalty provisions characteristic of a zoning ordinance," Busby wrote. "For these reasons, the ordinance is not zoning as that concept is ordinarily understood."

Chief Justice Nathan Hecht joined Busby on the opinion, as did justices Eva Guzman, Debra Lehrmann and Jeffery Boyd. Justices John Devine, Jimmy Blacklock, Jane Bland and Rebecca Huddle filed a concurring opinion.

This story will be updated with more information as it becomes available.


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