Houston, We Have a (Zoning) Problem

Houston, Texas, my hometown, is one of only two American cities with a population greater than one hundred thousand that has not imposed zoning laws on its citizens. (The other city is Pasadena, Texas, a suburb of Houston.) Many Houstonians, including me, see our relative freedom of land use as a badge of honor. Whereas other cities have fallen prey to the collectivist notion that the government or the “community” has a right to dictate how an owner may or may not use his property, Houston has substantially upheld the principle of property rights, one of the key principles on which America was founded. And, as we will see, Houstonians have been rewarded for this virtue.

But although Houston has, to date, avoided a comprehensive, full-fledged zoning plan, over the past three decades the city has gradually enacted measures such as billboard restrictions, preservation ordinances, landscaping ordinances, and other controls on land use—measures that, if not stopped and reversed, will ultimately add up to a full-fledged zoning plan. In other words, Houston, the city famous for its absence of zoning, has a zoning problem.

Consider a few recent measures. In 2008, in response to outcries from neighborhood civic organizations, Houston’s city council fought to stop several development projects. Under a mandate from the Federal Aviation Authority, the city is currently adopting development restrictions around the city’s airports. And potential mayoral candidates in 2009 are calling for more extensive land-use regulations. For instance, mayoral candidate and City Controller Annise Parker has suggested “a combination of reasonable regulations and financial incentives to steer development into appropriate locations,”1 and councilman Peter Brown wants to “adopt a comprehensive plan to realize our shared vision for the future and to shape the quality growth our citizens want.”2 This gradual shift toward more—and more restrictive—land-use regulations is not surprising, given that, according to a study released in early 2008, 83 percent of Houstonians favor “creating a general plan to guide Houston’s future growth.”3

The trend in Houston is to implement zoning piecemeal—while refusing to call it zoning. Zoning, however, by any other name—or by no name at all—is still zoning.

The fact of the matter is, Houston’s relative freedom in land use is not a problem that requires a remedy. Houston’s relative freedom in land use is a political virtue that should be embraced and expanded.

The Nature of Zoning Laws

Zoning laws dictate how owners may and may not use their property. Governments use Euclidian zoning—the most common type of zoning, named for the Supreme Court case that legalized zoning—to stipulate that certain parcels of land may be used in certain ways but not others. For instance, a typical zoning law might dictate that properties in a given area may be used for single-family residences but not for multifamily residences, or for multifamily residences but not for retail establishments, or for retail establishments but not for manufacturing. The general purpose of Euclidian zoning laws, as stated by zoning advocates in Hobbs, New Mexico, is to “separate incompatible land uses to reduce the negative impacts of noise, insects, traffic, odor, toxic fumes, and dangerous conditions.”4

Another type of zoning—form-based zoning—is used to control the physical features, or form, of a property. Form-based zoning does not mandate a specific use for a property (such as single-family residence), but does control other details of the property’s use. For example, under form-based zoning the government may allow mixed uses, but it mandates such matters as landscaping, architectural style, setbacks, and signage. In principle, Euclidian zoning, form-based zoning, and every other variant of zoning amount to the same thing: government coercion with respect to the use of private property. When combined, Euclidian zoning and form-based zoning can control virtually every aspect of a property’s use.

Under zoning laws, if a business wants to purchase a plot of land from a willing seller, it is free to do so; but if the land is zoned “residential,” the business may not legally build a store or repair shop there. Likewise, a homeowner is not free to convert his home to a duplex if it is zoned “single-family only.” And, of course, property owners who violate zoning laws are subject to fines, jail sentences, and, in some cases, government seizure of their property.5

Zoning laws are not limited to construction and development. They can control the smallest details and nuances of an owner’s use of his property, and they can be used for nefarious purposes even beyond the immediate violation of property rights, such as “banning” unwanted individuals. For instance, the city council of Manassas, Virginia, passed a zoning ordinance that restricts residence in households to immediate relatives, thus excluding aunts, nephews, cousins, and other members of the extended family—and the council acknowledged that the ordinance targeted Hispanics, who apparently were not wanted in the area.6 More mundane but equally absurd: In Princeton, New Jersey, after a zoning ordinance banned displaying anything in storefronts except books, flowers, plants, vegetables, and newspapers, a hardware store owner was threatened with a jail sentence for defying the ordinance by displaying barbecue grills.7 And in Fairfax, Virginia, John Thoburn was jailed and fined $1,000 a day because he refused to meet mandates issued by zoning officials. After meeting initial demands that he plant more than seven hundred trees on his golf course, zoning officials arbitrarily decreed that he plant another 50 trees and 124 shrubs.8

In most communities, zoning ordinances permit deviations from the zoning plan; however, a property owner seeking to use his land contrary to the zoning plan will find himself at the mercy of government officials—and his neighbors. In such cases, before issuing the “variance” that would legalize the landowner’s desired use of his property, zoning officials hold hearings to solicit input from those with adjacent property. Typically, if any neighbor disapproves of the property owner’s intentions, zoning officials will reject his request for a variance—often for even minor alterations, such as building a fence or adding a deck.9 Thus where zoning is imposed, a property owner’s neighbors can have a greater say over his use of his property than he has.

Special-interest groups often use zoning laws to forcibly impose their views and values on individuals and businesses. In Dallas, when city officials propose a change in the zoning ordinance, they consult residents and businesses of the affected neighborhoods about whether to approve the changes. The result, as the Dallas Morning News puts it, is “knock-down, drag-out fights that land before the City Council with the nasty thud of neighbors at each other’s throats.”10 Unfortunately, this may be a harbinger for Houston. In the 1990s, during the last unsuccessful attempt to implement a full-fledged zoning plan in Houston, when city officials unveiled proposed zoning maps, Houstonians launched into squabbles over zoning designations for properties they did not even own.11 And in 2008, numerous civic associations lobbied City Hall to stop development projects near their neighborhoods.12 Under zoning, politicians, bureaucrats, neighbors, and the “community” dictate how an owner’s property may or may not be used.

And even if the zoning officials and the “community” grant the owner permission to use his property a certain way, he is not immune from further communal caprice. Fordham University, in New York, received permission from the local zoning commission to build a radio tower on its campus in the Bronx. But when the radio tower was almost half finished, the zoning commission changed its mind and revoked the building permit, costing Fordham more than one half million dollars in wasted expenditures.13

These are not isolated horror stories; such injustices occur regularly throughout the country in cities with zoning laws, because such injustices are the logical result of granting politicians, bureaucrats, and the “community” the legal right to dictate how an owner may use his property.

Further Costs and Consequences of Zoning Laws

By prohibiting the owners from using their property according to their own judgment, zoning laws violate individuals’ property rights, erode freedom, thwart the economy, and increase the costs of living—not only for property owners but for everyone in the area.

One obvious consequence of zoning laws is higher costs of housing and fewer housing options than there would be in the absence of such laws. Because houses, condominiums, and apartments in proximity to commercial or industrial areas tend to sell or rent for less money than those at greater distance from such areas, mixed land use often makes for greater housing options at more affordable prices. Those without the means to purchase or rent a home in an exclusively residential neighborhood might find that they are able to afford a property located adjacent to a convenience store or muffler shop. But zoning laws deem such mixed land uses to be “incompatible” and “wrong for the community,” prohibit property owners from offering such alternatives, and thereby inflate the cost of housing across the board while decreasing housing options.

University of Washington professor Theo Eicher found that Seattle and Washington State’s land-use regulations have increased the cost of a $450,000 median home in the city of Seattle by $200,000, even taking into account inflation and demand. That is a 44 percent increase.14 That $200,000 results in the typical Seattle homeowner paying an additional $1,100 a month in principal, interest, property taxes, and other charges that would not exist were it not for these rights-violating land-use regulations. The steep cost of zoning has made home ownership virtually impossible for a large percentage of Seattle’s residents.

Houston, by contrast, has some of the nation’s most affordable housing, an attribute that helped it top Forbes’s 2008 list of best cities in which to buy a home.15 A report issued by the Federal Reserve Bank of Dallas acknowledged that Houston’s low housing prices are largely the result of its relative respect for property rights:

Houston and other metros such as Dallas and Atlanta that have relatively more permissive development policies have lower housing prices than more restrictive places do.

At $155,800, Houston’s median house price is the third lowest among the 12 largest U.S. metropolitan areas and is less than half the average for these cities. Houston’s median price is lower than even the national average, which includes inexpensive rural areas.

By comparison, the median house price in metropolitan San Francisco, where zoning laws and building codes are very strict, is $825,400.16

In cities with zoning and other restrictive land-use regulations, high housing costs drive the middle class to the less expensive suburbs, resulting in long commutes and the “urban sprawl” that many zoning advocates find distasteful. Relatively free Houston, however, is a haven for the middle class. In an article in the New York Sun, Professor Edward Glaeser of Harvard University compared a typical middle-class family in Houston to one in New York City:

After housing, taxes, and transportation, the New Yorkers have $26,000 left. The Houston family has $30,500, and those dollars go a lot further than they would in New York. The American Chamber of Commerce produces local price indexes for various areas, including Houston and Queens (though not Staten Island). The overall price index for Queens is 150, which means that it costs 50% more to live there than it does in the average American locale. The price index for Houston is 88.

If we exclude the areas that our two families have already paid for (housing and transportation) and average the remaining categories in the index (food, utilities, health, and miscellaneous), Queens is 24% more expensive than the average American area and Houston is 6% less expensive. Thus—again, after housing, taxes, and transportation—the Queens residents’ real remainder is a little less than $21,000; the Houston family’s is $32,200. The Houston family is effectively 53% richer and solidly in the middle class, with plenty of money for going out to dinner at Applebee’s or taking vacations to San Antonio. The family on Staten Island or in Queens is straining constantly to make ends meet.17

A primary reason for Houston’s lower cost of living is the lower housing costs resulting from its relative respect for property rights. In Houston, a house of two thousand square feet costs about $120,000. In New York City, the average apartment of fifteen hundred square feet costs more than $1.7 million.18 A study by Glaeser and Joseph Gyourko found:

In most areas of the country, home prices appear to be fairly close to the physical costs of construction. In some areas of the country, home prices are even far below the physical costs of construction. Only in particular areas, especially New York City and California, do housing prices diverge substantially from the costs of new construction.19

Glaeser and Gyourko concluded that the high cost of housing in cities such as New York is almost entirely the result of the costly regulations and permitting fees forced upon builders and developers. Glaeser describes the permitting process in Manhattan as “an arduous, unpredictable, multiyear odyssey involving a dizzying array of regulations, environmental, and other hosts of agencies.”20 In New York and other zoned cities, developers and landowners spend substantial time and money groveling at the feet of regulators and bureaucrats; these costs are ultimately passed on to buyers, renters, and the economy in general.

A clear correlation exists between land-use regulations and heightened costs of living. To the extent that a city enacts zoning laws or other land-use restrictions, its residents experience higher housing costs, higher costs of doing business, higher costs of living. The higher costs result from (among other things) the inefficient use of real estate, the artificially short supplies of land for each type of use (residential, commercial, industrial), the costs of obtaining land-use permits, and the costs of carrying property that cannot be developed due to the permitting process. Because Houston’s builders and developers are less shackled by land-use restrictions, they are able to use property in ways that make the most economic sense; they are better able to supply the market with property for each type of use; they are able to sell and lease property at lower prices; and they are able to change land uses more easily and efficiently than would be possible under zoning laws. Houston’s lower cost of living is a practical consequence of the city’s greater respect for property rights.

Zoning Laws vs. Quality of Life

Advocates of zoning and other land-use restrictions often argue that such controls are necessary to improve or maintain the quality of life of a community’s residents. But what constitutes a good quality of life is properly a matter for each individual to decide with regard to his own needs and values. Some people need to be close to their doctors’ offices; others do not. Some do not care to live within walking distance of stores, restaurants, theaters, and the like; others prefer such proximity. Some cannot tolerate industrial noise; others are not bothered by it. Some want a short commute to work; others like life in the suburbs and do not mind an hour-long commute. Some value jogging paths and parks; others value shopping malls and strip malls. Some prefer a spacious yard; others prefer not having a yard to maintain. There is no “right” or “wrong” on such issues; these are matters of personal preference and should be left to each individual to determine with reference to his own needs and values.

Each of these personal preferences and many more contribute to an individual’s desired quality of life. Cities that respect property rights defend individuals’ rights to develop, use, buy, and rent property according to their own views of what is best for their own lives. Cities with zoning laws violate these rights by forcing the preferences of politicians, bureaucrats, and the “community” on the lives of individuals.

Because Houston is relatively respectful of the rights of its owners to use their property as they choose, its residents have a wider variety of choices regarding their quality of life than they would if they were subject to zoning laws. Those who value a short commute can choose from downtown lofts to eclectic bungalows to stately Victorian homes within minutes of downtown. Those who value green space and parks can choose from townhomes or high-rises near the city’s largest parks. Those who value easy access to Houston’s many activities and attractions can choose from a wide variety of communities near the city’s highways. Those who prefer suburban life can choose from among dozens of developments in every direction. This broad array of choices, which includes a wide variety of affordable housing options, is a consequence of Houston leaving its property owners relatively free to develop and use their land according to their values.

The “Justification” for Zoning

Given zoning’s destructive consequences, both economically and in terms of lost freedom, why do most American cities embrace it? And why, given the economic benefits that Houston has enjoyed as a result of its relative respect for property rights, are many Houstonians eager to enact more restrictive land-use regulations?

A common argument given for zoning is that it protects home owners from dangerous pollutants, excessive noise, nauseating smells, and other things that may be emitted from industrial or commercial operations. “Without zoning laws,” the argument goes, “people would be subject to all types of dangers and nuisances; therefore, the city must dictate how property owners may use their property.” But there are legitimate laws and principles to deal with such situations. If a business spills chemicals onto someone’s property, the business has violated that person’s property rights and can be held accountable in a court of law.

As for loud noise, unpleasant smells, and the like, such matters are addressed by the English common law principle of “coming to the nuisance.” “Coming to the nuisance” is essentially the idea of “first come, first served,” and it is rooted in the age-old maxim “no legal wrong is done to him who consents.”21 On this principle, if someone comes to an existing nuisance—say, he builds a house next to a shooting range, or opens a restaurant next to a paper factory—then he has no right to demand that the nuisance of loud noise or nasty smell be eliminated. Conversely, if someone builds a shooting range next to a preexisting quiet residential neighborhood, the residents of that neighborhood have a right to demand that the range either reasonably soundproof its facility or cease operation.

Granted, cases can be more complex than these, but the basic principle still applies. If someone comes to a preexisting nuisance, he has no right to demand that it be eliminated.

Individuals can also achieve desirable neighborhood characteristics and avoid undesirable ones by means of deed restrictions, or restrictive covenants. Deed restrictions are a contractual means by which owners voluntarily limit the use of their property. Because they are voluntary, deed restrictions respect property rights while providing stability and predictability in land use. Those who wish to live in neighborhoods without billboards, businesses, or other commercial activities can opt to live in master-planned communities or other neighborhoods with deed restrictions to this effect.

Combined with existing laws against harming other peoples’ property, the principle of “coming to the nuisance” and the option of deed restrictions provide rights-respecting solutions to all legitimate concerns about property-use conflicts without resorting to coercive zoning laws.

Houston, Let’s Solve This Zoning Problem

Houstonians are freer to pursue their own values than are residents of other American cities because Houston’s government by and large respects and protects the rights of property owners to use their land as they choose. But these rights are increasingly being assaulted with ordinances and other regulations that restrict land use. If Houstonians want to turn back these encroachments on their freedoms and prevent further encroachments, they must recognize and insist on the absolute nature of property rights.

That each individual has a right to keep, use, and dispose of his own property as he sees fit is a key principle of this great country, and Houston is one of the very few American cities that still (largely) upholds this principle. Neither bureaucrats nor the “community” has a right to dictate how an owner may or may not use his property, so long as he is not violating the rights of others. Let us recognize and embrace this American principle, and let us wear it as a badge of honor and prosperity.

We can put an end to the creeping zoning provisions in this great city, and we can reverse the provisions that have already passed. We can solve this problem now before it gets too big to solve easily. To do so, we must demand that the government recognize the absolute nature of property rights and that it begin repealing the piecemeal zoning policies it has passed. And we must be ever vigilant from here forward.

About J. Brian Phillips

J. Brian Phillips owns a contracting company based in Houston, Texas. He helped defeat zoning ordinances in Houston in 1993 and in Hobbs, New Mexico in 2007, and has actively fought other violations of property rights on the local level. His articles on property rights and related issues have appeared in The Freeman, Kiwanis Magazine, the Houston Chronicle, and the Orange County Register. He blogs on property rights at txpropertyrights.blogspot.com.

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