A Challenge to Preservation

A Houston couple has sued the City of Houston over its preservation ordinance. The case is due to be heard by the Texas Supreme Court on January 5. The couple’s suit claims that Houston’s preservation ordinance constitutes zoning. Houston’s charter requires a citywide referendum before zoning can be implemented, and no such referendum was held regarding historic preservation.

Sara Bronin, a Houston native and University of Connecticut law professor, filed an amicus brief with the Texas Supreme Court in support of the city. She said the ordinance is beneficial because it allows homeowners to preserve the character of their neighborhoods and in turn protect their property rights and property values.

Bronin is wrong. The right to property means the freedom to create, use, keep, and trade material values as one deems best. Preservation ordinances restrict how owners may use their property. Such laws generally prohibit changes that may impact a building’s historic character, and in some instances, even the use of modern building materials. Regardless of the details, if an owner cannot use his property as he chooses, his property rights have been abrogated.

Bronin also pointed out that historic preservation laws are different than zoning laws and have historically been treated differently by courts. Zoning, she said, regulates land use within entire municipalities; in contrast, preservation laws only regulate aesthetics in a small area.

Preservation ordinances can, and often do, regulate much more than aesthetics. But this isn’t the issue. Even if an ordinance only regulates aesthetics, it means that the owner bureau only use his property as government officials permit. It means that the owner can’t use his property as he desires, but only in accordance with the whims and caprice of preservation bureaucrats.

Houstonians have, at least implicitly, recognized this fact. Realtor Bill Baldwin, who is a member of the Houston Planning Commission, estimates that hundreds of Houston neighborhoods are eligible for the historic district designation, but few have gone through the process.

If historic preservation was so well-received, you would have had a lot more people applying for historic designations. What you don’t get is neighborhoods applying for historic districts (after 2010), because the process itself is so painful and the rules and regulations are so arbitrary and they change so quickly from year to year and from administration to administration.

The very nature of land-use regulations, whether zoning, preservation, or some other variant, makes arbitrary decisions and frequent changes inevitable. Such laws are a magnet for noisy groups who pressure politicians and bureaucrats to place controls on the property owned by others. And usually, the groups that yell the loudest and the longest get what they want when politicians and bureaucrats cave in to the pressure groups.

Legally, the courts may view zoning and preservation differently. Morally, they are the same; both are a violation of property rights and subjugate the desires of property owners to the group.