Houston doesn't need zoning, but it does need better development regulations

Early last week, Andrew at neoHouston had an interesting article about the ongoing controversy regarding the Ashby High Rise, a residential tower proposed to be built amidst a neighborhood of single-family homes near Rice University. Andrew explains that, in other cities, this controversy would be handled by a set of land-use regulations known as zoning. He provides some history of zoning and explains why this form of land-use regulation is not right for Houston, but also laments some of the drawbacks to Houston's current approach towards land development regulation:

Houston has avoided the worst of these policies by staying away from conventional zoning. Ironically, however, Houston has adopted many of the same ordinances and policies of other cities. As an example: when platting land for development, if the developer does not explicitly denote another land use, the city REQUIRES the land be restricted to single-family residential uses. Because these regulations are hard-coded into the legal description of the land they are extraordinarily difficult to change in the future. Houston also has parking and setback requirements taken straight out of the conventional zoning world.

The result of the regulations we have are the same as the results of the regulations in other cities: low density, pedestrian-hostile development disproportionately dominates the city – not because this is all the market demands, but because it’s all that is legal to build. Doing anything different exposes a developer to a regulatory situation that’s a headache at best and a nightmare at worst.

So while we like to think that we’re scarcely regulated, the facts are quite different. Houston has a pretty average amount of land use regulation, but where it is different is the scattered and unpredictable way in which the City enforces its regulations. The Ashby development is the poster-child for the problems with Houston’s approach.

As somebody who served as a development review planner for three years in a Texas city with zoning (Denton), I completely agree that Houston has done well by avoiding this form of regulation. Ideological arguments against zoning aside - I'm no enemy of the free markets myself, although I don't agree with the idea that "markets always know best" and believe that at least some regulations are necessary - I have a pragmatic objection to conventional ("Euclidean") zoning being implemented in Houston. Simply put, trying to implement zoning in a city as developed as Houston is today would be a messy exercise in futility. I liken it to closing the barn door after the horse has escaped, because it would do about as much good.

For Texas cities, the zoning amendment process is regulated by Section 211 of the Texas Local Government Code. It requires, among other things, public hearings for proposed zoning changes, notification of adjacent property owners, a recommendation on the proposed zoning by a municipality's appointed planning commission, and final approval by the city's elected governing body (i.e. city council; because amendments to the zoning map are essentially amendments to municipal law, they must be ultimately approved by the city's law-making body). This process is a lengthy as it is cumbersome. Generally, a simple majority of council votes is needed to approve zoning amendments. However, in cases where property owners representing 20 percent or more of the land area surrounding the property proposed to be rezoned are in opposition to the amendment, or if the planning commission recommends against the proposed change, then a supermajority (75 percent) of council votes are required to approve the change. In this way, surrounding property owners, for better or for worse, have a great deal of influence in how adjacent properties are used.

Instituting a conventional zoning ordinance in Houston would mean several things: the local planning bureaucracy would need to be enormously expanded in order to handle the tremendous caseload that zoning enforcement and amendment actions in the nation's fourth-largest city would entail. Much of this expanded bureaucracy would be funded through developer application fees, increasing the "cost of doing business" for developers, and there would still probably be at least some supplementary funding required of this larger bureaucracy through the city's general, taxpayer-funded account. Because Houston has been unzoned for so long, there would invariably be kaleidoscopic array of nonconforming uses and structures that would have to be dealt with, and a multitude of variance requests and rezoning applications (following the process I outlined above) would result. Planning Commission and City Council meetings are long enough as it is today; adding a bunch of zoning cases to every meeting's agenda would make these meetings even longer. It also would create a very divisive political process, pitting existing property owners screaming "NIMBY" against developers looking to profitably development property they own. Land use disputes here in Houston are generally rare because people recognize that the city has limited powers to regulate them; indeed, the the controversy surrounding the Ashby High Rise is unique due to its rarity. In Denton, which at the time I worked there had five percent of Houston's population, such controversies occurred with regularity.

As an alternative to Euclidean land-use controls, Andrew suggests a form-based approach to development regulation:

Fortunately, there’s a straightforward solution for the issues Houston is facing. The Congress for the New Urbanism is an organization that has been dedicated to the development and advancement of new municipal policies to make urbanism in cities legal again. One of the tools the CNU has advocated is called “SmartCode.”

SmartCode is an effort to combine the many facets of development regulation (subdivision and platting regulations, building regulations, traffic and parking regulations, etc) into a single, streamlined, compact document. Its entire goal is to stay away from land-use controls (which unreasonably inhibit the market and create constant conflict at City Hall), and focus on simple, predictable, results-oriented standards.

In essence, SmartCode divides different scales of buildings into different “transect-zones”, defines how the street should be designed to accommodate the needs of different scales of development, and leaves the rest to the market. Contrary to popular belief, SmartCode is not about “style;” the standard code does not contain any.

A form-based approach Andrew is suggesting could regulate aspects of development such as building height and setbacks. I don't think any such code should regulate aspects of development such as minimum lot size or dimension or, outside of certain special districts in neighborhoods, historic areas or around transit stations, building design. In not even sure such a code should regulate standards such as lot coverage or landscaping, although, given Houston's historic flooding problems, there might be some restrictions on the maximum amount of permeable area allowed on a lot in order to retain and absorb rainwater runoff. I agree with Andrew that minimum parking standards should be scrapped. Let individual developers decide how much or how little parking they need for the development they are proposing, and encourage creative collaboration between neighboring property owners on shared or community parking facilities. Obviously, land uses and densities (in the form of floor-to-area ratios for commercial development and units per acre for residential development) would not be regulated.

However, because it would divide the city into zones that regulate development, and also because form-based regulations would, at least indirectly, affect the type of use and density of a given property, it is certain that such SmartCode would still be considered a type of zoning and therefore subject to Section 211 of Texas Local Government Code. That suggests that the same drawbacks that a standard zoning ordinance would entail - a larger municipal bureaucracy, a multitude of nonconforming structures that need to be regulated, the slow, expensive and cumbersome zoning amendment process, the power of adjacent property owners to limit development based on supermajority requirements, longer Planning Commission and City Council meetings, owner-versus-developer controversies and a polarized political environment - would also result from a form-based code.

With that said, I don't think these problems would manifest themselves to the same degree as would occur under a traditional, use-based zoning code. As Andrew explains, the relative simplicity of the regulatory framework involved in such a code could keep these issues to a minimum:

Because of how few requirements there would be, the most common request for variances would almost certainly be for added height as areas originally categorized as T3 or T4 develop more intensely. The city policy should be for a simple “upgrade” from one category to the next highest so long as the developer builds infrastructure – most importantly street connectivity – appropriate to the intensity of development.

Based on my experience in Denton, the greatest controversy surrounding zoning amendments was generated by the proposed land use change itself; the size and placement of what would be permitted under a zoning change oftentimes wasn't an issue or was a secondary issue to the change in land use itself. By eliminating regulations relating to land use or density from a Houston-specific form-based code and limiting the variance and amendment process to building height and placement, the bureaucratic caseload generated relative to a traditional zoning code would likely be reduced, as would the potential for controversy. This is not to say that no proposed changes - upgrading a property from one transect type to another - would generate controversy; there would likely be less of it, and it would be narrowly focused, but it would still be there.

Given that outcome, as of right now I am not fully convinced that a form-based code is the type of development control that Houston needs, although I do think Andrew makes a compelling case for it and I'm certain it's a better alternative than traditional land-use-based zoning. What I am convinced of is this: as Houston's urban core continues to densify, conflicts like the one surrounding the Ashby High Rise that are still relatively rare today are without a doubt going to become more and more common in the future. My fear is that some point, more and more citizens are going to become affected by these controversies and are going to become disillusioned with the City's current approach to land development regulations such that they are going to demand a mechanism to deal with these disputes, including traditional use-based zoning (and in that regard its worth noting that Houston's last attempt at zoning in 1993 barely failed in a referendum). The conversation regarding development regulations that Andrew is putting forward is something that the City of Houston needs to have sooner rather than later.