LAND USE U P D AT E Historic Preservation and RLUIPA: What “Zoning” Means 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 Contributing Author: Daniel R. Mandelker, Washington University School of Law, Stamper Professor of Law Emeritus, St. Louis, Missouri.
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 later period concerned with the task of preserving the history and aesthetics of buildings that led to the adoption of historic preservation ordinances. It concluded that historic preservation is a land use regulation historically distinguished from zoning. Based on its reading of these sources, the court decided “that the ordinary meaning of zoning is the district-based regulation of the uses to which land can be put and of the height, bulk, and placement of buildings on land, with the regulations being uniform within each district and implementing a comprehensive plan.” 628 S.W.3d at 849. Zoning also tended to
be comprehensive geographically by dividing an entire city into districts. The court decided that several “key features” of zoning were missing from the historic district ordinance. Significantly, it did not regulate land use purposes. Instead, it focused on “protecting and preserving the exterior architectural characteristics of buildings based on historical significance, distinctiveness, and connection to a neighborhood.” Id. at 850. The court noted other distinctions. An historic district ordinance, for example, did not meet the typical statutory requirement that zoning must be uniform within a district because each property in a historic district is required to maintain its unique historic exterior features. Id. at 853. Uniqueness is not uniformity. The decision in Powell saved historic preservation ordinances in Texas from extinction because Houston voters have consistently voted zoning down. It is the only major city in the country that does not have zoning. The Houston historic preservation ordinance would have been void under the city charter, had the court held it was a zoning ordinance subject to voter approval, because it was not voter-approved. Avoiding this result may have influenced the Powell decision, but its distinctions are arguable, and another court may take a different view. For example, why doesn’t historic preservation have a land use purpose? Why isn’t the uniformity required by zoning laws met by historic district regulations that apply uniformly throughout a district? Like historic districts, zoning ordinances also require consideration of uniqueness when zoning boards consider hardship variances. Other questions remain. What about other purpose-based land use
Published in Probate & Property, Volume 36, No 3 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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May/June 2022
