by Stephen Smith

It seems to be an article of faith among many land use commentators – both coming from the pro- and anti-planning positions – that Houston is a fundamentally unplanned city, and that whatever is built there is the manifest destiny of the free market in action. But is this true? Did Houston really escape the planning spree that resulted from Progressive Era obsessions with local planning and the subsequent grander plans of the post-WWII age of the automobile? Michael Lewyn, in a paper published in 2005, argues that commentators often overlook Houston’s subtler land use strictures, and recent developments in the city’s urban core reaffirm this.

It is definitely true that Houston lacks one of the oldest and most well-known planning tools: Euclidean single-use zoning. This means that residential, commercial, and industrial zones are not legally separated, though as I will explain later, Houston remains as segregated in its land uses as any other American city. But single-use zoning is not the only type of planning law that Houston’s government can use to hamper development.

As Lewyn lays out in his paper, minimum lot sizes and minimum parking regulations abound in this supposedly unplanned City upon a Floodplain. He discusses a recently-amended law that all but precludes the building of row houses, a stalwart of dense urban areas (the paper is heavily cited and poorly formatted, so I’ve removed the citations):

Until 1998, Houston’s city code provided that the minimum lot size for detached single-family dwellings was 5000 square feet. And until 1998, Houston’s government made it virtually impossible for developers to build large numbers of non-detached single-family homes such as townhouses, by requiring townhouses to sit on at least 2250 square feet of land. As Siegan admits, this law “tend[ed] to preclude the erection of lower cost townhouses” and thus effectively meant that townhouses “cannot be built for the lower and lower middle income groups.” Houston’s townhouse regulations, unlike its regulations governing detached houses, were significantly more restrictive than those of other North American cities. For example, town houses may be as small as 647 square feet of land in Dallas, 560 square feet in Phoenix, and 390 square feet in Toronto, Canada.

Though this law was eventually changed to allow denser homes within Houston’s ring road (though not nearly as dense as some American cities allow), this change only affected a quarter of Houston’s homeowners, leaving the rest still as regulated as ever. Not to mention the fact that even for those within the ring road, the rules only matter to new construction, leaving the vast majority of the building stock in compliance with the old rules.

Not to be outdone by minimum lot restrictions, the parking planners are also hard at work in Houston. As Donald Shoup explains in his magnum opus on parking regulations and the free market, minimum parking regulations are an oft-used and under-appreciated way for city planners to decrease density, push development farther from the city’s core, increase an area’s auto dependency, and decrease walkability and the viability of mass transit. Houston’s planning code mandates that developers, regardless of what they perceive as the actual demand, build 1.25 parking spaces per apartment bedroom, and 1.33 spaces per efficiency apartment. Retail stores are also saddled with these parking minimums, and even bars as Lewyn notes are required to build “10 parking spaces per 1000 feet of gross area,” flying in the face of common sense. To add insult to injury, the city requires that structures on major roads have a significant setback from the street, and the only rational thing to do with this unbuildable space is to put the mandated parking there, meaning that Houston actual codifies the hideous and inconvenient parking lot-out-front model of sprawl that is so typical across the US.

Another form of planning that Houston has, which is celebrated by the self-titled Antiplanner, is the institution of supposedly voluntary deed restrictions, or private land use covenants agreed upon by the owners of the property under restriction. I’m personally torn over the “libertarianness” of such schemes – are they truly voluntary? Can an individual owner of a property opt out of them once they’ve been signed? What’s the statute of limitations? One thing that makes me suspect that they perhaps aren’t as “free market” as they seem is that though the contracts are between individuals, Houston’s city code allows the city attorney to prosecute these lawsuits at no cost to the supposed victims – fellow property-owners. In this way, as Lewyn explains, Houston’s land uses are just as “Euclidean” as in other American cities:

But in Houston, restrictive covenants are so heavily facilitated by government involvement that they resemble zoning regulation almost as much as they resemble traditional contracts. Houston’s city code, unlike that of most American cities, allows the city attorney to sue to enforce restrictive covenants. The city may seek civil penalties of up to $1,000.00 per day for violation of a covenant. Thus, Houston forces its taxpayers to subsidize enforcement of restrictive covenants even when litigation is too costly for individuals to pursue. In its covenant litigation, the city focuses on enforcement of use restrictions (that is, covenant provisions requiring separation of uses), as opposed to enforcement of other restrictions such as aesthetic rules. By subsidizing enforcement of use restrictions, Houston’s city government subsidizes segregation of land uses–and in fact, land uses in Houston are only slightly less segregated than in most cities with zoning codes.

More recently, Houston’s supposedly laissez-faire attitudes towards planning have again been tested by the proposed 23-story tower at 1717 Bissonnet Street. The tower would have been in a low-rise residential neighborhood, within walking distance of Rice University. After years of wrangling, the project was finally denied by the city, on grounds that the developers failed to prove that the project would not adversely affect traffic flow (a pretty arbitrary and un-libertarian requirement considering Houston’s legendary congestion and the fact that developers have little say over where the city places its roads). And this, despite the fact that many of the tower’s prospective residents – Rice students and staff – could have either walked or biked to school/work.

Boosters of Houston’s land use policy – those who believe that Houston’s land use patterns are the free market, revealed – never mention the restrictive minimum lot size and minimum parking requirements. They mention deed restrictions as free market innovations but fail to see how the city’s prosecutors turn private concerns into public budget drains. And though the Antiplanner in his aforelinked comments on Houston recognizes the anti-density movement that reared its ugly head after the 1717 Bissonnet proposal, he evidently doesn’t see this as seriously detracting from Houston’s anything-goes land use policy.

This post was written by Stephen Smith, who writes for his own blog called Rationalitate.

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This post is part of an ongoing series featured on Market Urbanism called Urbanism Legends. The Urbanism Legends series is intended to expose many of the myths about development and Urban Economics. (it’s a play on the term: “Urban Legends” in case you didn’t catch that)

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