Zoning Referendum III (1993)
In the governance of land, municipal zoning ordinances arrived in US cities during the first decades of the twentieth century. They superseded in most instances nuisance lawsuits between private property owners. Zoning was the result of a Progressive-era reformulation of the relationship between the public interest and private property, in the movement for city planning. Also, the manufacturing districts and stockyards of the new industrial city – Chicago, being the greatest example – threatened the character and environment of many neighborhoods, while new forms of urban transportation made possible the greater separation of manufacturing, commerce, and residence.
The first time a zoning ordinance failed to pass in a popular referendum in Houston was 1948, at the precipice of a state-sponsored postwar suburban housing boom. Only property owners could vote. The contest was largely personal, between arguably the city’s two greatest founding fathers, Jesse Jones (1874-1956) and Roy Cullen (1881-1957). Jones was a banker, who predicted that Houston was destined to be the “next Chicago.” He had been Chair of the Reconstruction Finance Corporation (RFC) during the New Deal, probably then the second most powerful government figure in the US after FDR. Jones supported zoning. Opposed was Cullen, a rich oilman, and a former Democrat, who had broken with what he called FDR’s “Jew Deal.” Cullen’s side won by a margin greater than two to one. The image of Houston as the “free enterprise city” was born.
Another zoning referendum failed to pass in 1962. This time, all city residents could vote. This time, the margin was 57 percent to 43 percent. Decisively, African-American and Mexican immigrant neighborhoods opposed the measure. Apparently, given the long history of discriminatory and racist red lining in New Deal government housing policy, in these neighborhoods the association between zoning and segregation was strong. In 1970, the legal scholar Bernard Siegan published “Non-Zoning in Houston” in The Journal of Law & Economics. Houston, Siegan argued, proved that private nuisance law could accomplish all of the benefits of zoning, without cities infringing upon constitutionally protected private property rights. Since then, in the law and economics and urban planning literatures, Houston has been a libertarian darling.
But the notion of Houston as the “free enterprise city,” or what the great British architectural critic Reyner Banham once called “a real-life Monopoly game,” in which development is nothing more than the unrestricted interplay of market forces and private property rights, is a myth. Like all myths, it plays a prominent role in organizing the city’s collective sense of its origin and destiny. But the city of Houston and Harris County have always governed land use through an ad hoc series of ordinances that accomplish many of the same ends as zoning. Over the years, ordinances have governed such things as minimum lot size, minimum setbacks from the street, and buffer zones between residential and commercial property.
Houston established “central business district” areas, and “transit corridors.” “Sexually oriented businesses” are barred from locating 1,500 feet from schools and churches, in an ordinance challenged on constitutional grounds (the 5th Amendment’s takings clause), but affirmed in the federal court ruling SDJ v. City of Houston (1988). This case dismissed this challenge to the ruling precedent, Euclid v. Ambler Realty (1926), which first constitutionally upheld zoning, as a reasonable use of local police powers to prevent nuisances and guide urban development. Last but not least, since the 1980s city ordinances have issued building rules, arguably the strictest in the US, in the floodplains. When developers pave, they must build detention ponds to manage peak water flow. More recently, the “zero net fill” requires that builders dig out a hole equivalent to every hill they construct.
The Harris County Flood Control District has long made the ludicrous claim that because of these measures development since the 1980s has not been responsible for increased flooding. But the Rice environmental engineering professor Philip Bedient has found that over the last 40 years rainfall in Houston has increased 46 percent. Yet, runoff is up 204 percent. Meanwhile, the Houston Chronicle determined in a small sampling that a half of all builders were out of compliance with detention pond construction requirements.
There are limits to what the city and the county can do, or wants to do. Property owners and developers may apply to the city for one-off exemptions, or “variances,” as they are known, which typically are granted. Further, Houston is unique, as the municipality itself enforces subdivision deed restrictions, which the city defines as “private agreements” that “are binding upon every owner in a subdivision,” and whose primary purpose “is preserving the residential character of a subdivision by keeping out commercial and industrial facilities.” Meyerland was one of the first deed-restricted neighborhoods in Houston. In the past, before US Supreme Court interventions, white property owners used deed restrictions to discriminate against blacks, as much as to keep out non-residential activities.
At all events, Houston’s land use regulations have meant the following. First, most ordinances, such as lot size regulations, incentivized the sprawl of single-family home suburban construction, favored by private developers. Typically, rather than the city, it is property owners who constrain development, when it is constrained, by filing private nuisance suits, which argue that prospective developments will negatively affect property values. In general, however, as much as market forces and property rights, the pattern of city development is determined by the interaction of city officials and large developers, a nexus of public and private power. Finally, land use ordinances do not enable the city to do long-term planning. The city has the tools to block single instances of land use. But it has never acquired the tools to achieve more general urban planning, and thus to direct the path of future city development.
The last zoning referendum to fail to pass in Houston came in 1993. The measure, a 275-page ordinance, was expected to pass, with a reported 70 percent of polled residents said to have favored it in the run up to the vote.
The final tally was 51.9 percent against, 48.1 percent in favor. Once again, nays from predominately African-American neighborhoods swung the vote, in tandem with wealthy usually highly deed-restricted and largely white neighborhoods. The city’s main business lobbies, internally divided, remained neutral, although the most important city developer, Gerald D. Hines, came out in favor of the ordinance, which sought to create broad “overlay” zones in already developed areas of the city, while still carving out yet-to-be developed “open districts” where only “heavy industry” was forbidden.
Before the vote, to rally opposition the Houston Property Rights Association (HPRA) came into being. First, HPRA advocated the blessings of unrestricted private property rights, but boilerplate free enterprise fell on deaf ears. So then, HPRA made a push in Houston’s black neighborhoods, with a strategy of outreach to the city’s black churches in particular, in an effort to yet again associate zoning with race-based segregation.
It seemed to have worked. For this reason, some city observers say the referendum was stolen. If not every developer, or even the largest ones, many developers did fund the HPRA. But I am skeptical of this explanation.
If one reason black Houstonians did not support zoning was the legacy of racist red lining, another related reason was fears – hardly far-fetched based upon the city’s past – that more ordinances would disfavor the kinds of development that many black residents desired, whether it be mixed use sites, multi-family housing, or greater urban density and use of public transportation.
However slight, the city’s efforts to control development before had not been democratic. They had been blatantly discriminatory instead. Why expect anything different?
But then the failure of the zoning referendum stripped the city of the tools it would need, later on, to achieve precisely such stated developmental aims, in addition to the tools to make possible a different pattern of land use, and better harmonize the city’s natural and built infrastructures, in light of the city’s tendency to flood, in the era of anthropogenic climate change.
Thus, the outcome of the 1993 zoning referendum is emblematic of the manner in which twentieth-century liberalism’s discriminatory biases – in ways direct and obvious, indirect and unexpected – have crippled long-term state planning in the US down to this day.
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