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Thursday, February 1, 1990

Progressivism Comes to Houston

Mr. Phillips is a free-lance writer based in Houston.

During the Progressive Era of the early 20th century the nation’s first zoning ordinances began to appear. Public control of private property was a popular cause at the time, and land-use restrictions were frequently used to achieve this end. During the Progressive Era, and in the years since, only one major American city did not enact some form of zoning. That city is Houston.

While other cities have imposed severe restrictions on property use—through zoning, strict building codes, rent control, and so on—Houston has generally respected property rights. This, however, is changing, as a growing number of restrictions are imposed on private property. As the 20th century comes to a close, Houston is entering its own Progressive Era.

The Zoning Issue in Houston

Zoning is not a new issue in Houston. No less than four times in this century, some form of zoning has been proposed for the city.

In 1912, at the height of Progressivism, a landscape architect from Massachusetts was hired to develop a zoning plan for Houston. This plan was largely ignored until 1922, when the city established its first planning commission. In 1929 a zoning plan was formally presented to the City Council, but real estate interests opposed the plan.

In 1936, several city leaders suggested that the plan of 1929 be implemented. Over the next seven years, neighborhood meetings were used to gain support for the proposal. Realtors again opposed the plan, and were joined by the owners of property in Houston’s older residential neighborhoods. The zoning proposal was submitted to voters in a non-binding referendum in 1948. it was rejected by a two-to-one margin, and plans for zoning were temporarily dropped.

Not easily discouraged, zoning advocates raised the issue again in 1957. Five years later, voters once more went to the polls to cast their ballots on zoning. Though zoning was again rejected, the margin of defeat was much narrower.

The most recent push for zoning began in earnest in the early 1980s. Public opinion is now much more supportive of property use controls. Through the slow erosion of property rights, Houston is being prepared for a comprehensive zoning plan.

During the past decade the city has passed or considered at least eight ordinances aimed at controlling private property. In other cities, these ordinances would have been included in a comprehensive zoning ordinance. In Houston, they represent what some critics call a “backdoor” approach to zoning. In most cases, city officials have aimed their restrictions at unpopular businesses and development practices.

Often regarded as the billboard capital of America, Houston enacted an ordinance in 1980 that severely restricts the size and location of billboards and outdoor signs. Mayor Kathy Whitmire and a majority of the City Council support the restrictions, as does one of the city’s major newspapers, The Houston Post.

Another backdoor approach to zoning during the past decade has been increased regulation of sexually oriented businesses. As with billboards, the absence of zoning and the booming economy of the late 1970s and early 1980s allowed such busi nesses to proliferate. The city has responded with a growing number of ordinances regulating the lo cation and operation of these businesses. The public has been very supportive of the controls.

To many Houstonians, including some zoning opponents, controls on billboards and sexually oriented businesses are unrelated to zoning. Both ordinances have received enormous public support, yet zoning—in its traditional form—remains relatively unpopular.

However, the growing acceptance of controls on private property is paving the way for comprehensive zoning. Both intellectually and politically, attitudes toward zoning are changing.

Advocates of Zoning

Over the years, the arguments put forth by zoning advocates have changed very little. What has changed is the public% acceptance of those arguments, many of which have been economic. Zoning supposedly protects property values by prohibiting “undesirable” land uses. An article in The Houston Post in 1929 argued that “specialization by districts [zoning] increases the efficiency and value of real estate.”

More recently, Houston architect, planner, and urban designer Peter Brown and City Planning Commission member Kay Crooker wrote that zoning “gives investors and developers confidence in the economic strength and future potential of an area.” Zoning, its advocates insist, is essential to long-term economic growth.

ironically, while some assert that zoning is essential for attracting investors to Houston, others are denouncing those same investors. “There are investors in Toronto and Mexico City, Denver and Pittsburgh,” wrote Post columnist (now Editor) Lynn Ashby in 1982, “who don’t give a hoot about living conditions in our town, but make a bundle off our problems.” We need zoning, Ashby says, to control these “greedy absentee landlords.”

While the advocates of zoning are unsure whether restrictions on property are necessary to attract or to control investors, they agree that zoning will protect the city’s “quality of life.” In a 1960 report, the Houston Commission on Zoning stated that “we must now zone ourselves so that our children may live in a city that is not chaotic.” Twenty years later, Lynn Ashby wrote: “[W]e are probably creating an unlivable city for our grandchildren. . . .”

Like statists of every variety, advocates of zoning seek to impose their vision of the “good life” on everyone. Declaring the free market “chaotic” and “unlivable,” they insist that they know the solution and can make the world a better place for everyone. Of course, there is a cost for this utopia: freedom.

Brown and Crooker wrote: “Perhaps one of the reasons some politicians and developers in Houston have traditionally opposed city planning is its very democratic nature—it redistributes some of the power and decision-making authority and invites public debate on important issues.”

The “important issues” are the uses of private property. To “redistribute some of the power and decision- making authority” means to take from those who have earned and produced and to give to those have done neither. The advocates of zoning seek to use political power—physical force—to redistribute economic power—production.

Planning and Zoning

In Houston, zoning is regarded as a four-letter word. Some call it “that Z-word.” Like the early 20th century Progressives, who advocated socialism yet wanted to avoid the stigma attached to that word, pro-zoning forces try to hide their true intentions. They generally prefer the term “planning.”

This euphemism has been used to great advantage by zoning advocates, who frequently cite the many advantages of master-planned communities. Such developments abound in the Houston area. Deed restrictions—i.e., voluntary contractual agreements—control property use in these communities. The popularity of master- planned communities is often used to justify city-wide planning. For years, the city’s Planning Department, Mayor, and City Council have called for increased city planning. Now in the process of developing a comprehensive city plan, Planning Director Efraim Garcia has said that the proposed system will be “informational” rather than mandatory. In other words, the city will “suggest” land uses, rather than require them.

Many see the planning process as a compromise between zoning and laissez-faire, between government control and private control. Groups such as the Houston Apartment Association—which has vehemently opposed zoning in the past—endorse the planning process.

Planning differs from zoning, its supporters argue, because planning does not have the power of law, i.e., a developer cannot be prevented from deviating from the plan. But recent experience demonstrates that that can change. Until recently, the Houston City Planning Commission had no enforcement powers. Today, the commission can impose fines to penalize violators of land-use ordinances. Once a comprehensive plan is accepted, implementing zoning will be merely a matter of giving the Planning Commission further enforcement powers.

A Sign of the Times

Following the passage of a sign and billboard ordinance in 1980, the outdoor advertising industry took the matter to the courts. The ordinance eventually was upheld by the Texas Supreme Court.

One of the provisions of the ordinance allowed for the creation of “scenic or historic districts” in which outdoor signs are severely restricted. The City Council has created numerous districts around the city, and civic groups have begun presenting petitions to the council calling for similar status in their areas.

Two of the city’s largest developers—Gerald Hines and Kenneth Schnitzer, support controls on billboards. In 1984 Schnitzer sent 500 letters to civic and trade organizations trying to raise support for legislation aimed at “visual pollution” in Houston. Hines is on the advisory board of Billboards Limited, a local anti-billboard group. “Damn it, we’ve got to clean this city up,” Schnitzer once said in explaining why he supports such controls. In the past, businessmen and developers have been the primary defenders of property rights in Houston. Today, this is no longer true. Men like Hines and Schnitzer, and business organizations like the Chamber of Commerce and the Houston Economic Development Council (which Schnitzer founded), openly endorse greater government controls on private property.

After the Texas Supreme Court upheld the Houston ordinance, local billboard companies began using their signs to present their case to the public. “Billboards Affect 5,135 Houston Jobs,” declared one. “Billboards Protect Freedom of Speech for Social and Political Messages,” said another. But these signs have had little impact, largely because the public and the industry agree on one basic premise: the right of the city to regulate the sign industry.

In an Op-Ed article for The Houston Post, Rob Schmerler, president of the Harris County Outdoor Advertising Association, wrote: “Outdoor advertisers are very much in favor of stringent regulation and control of billboards.” He went on to write that the “industry agrees with the majority of Houston’s sign regulations and is working toward fair compromises of our few differences.”

Having agreed that the city can regulate their industry, billboard companies can only squabble over the level of that regulation. This is like a banker agreeing to be robbed, and then complaining that the robber has taken too much. Once a principle is accepted, debating its application is pointless.

The Political Climate

Traditionally, advocacy of zoning meant political death in Houston. In recent years, as property controls become more acceptable, this has been changing.

For example, in 1987 five candidates for City Council supported zoning, in one form or another. A candidate for mayor in 1989 ran on a pro-zoning platform. And the city’s comptroller once suggested that zoning might be appropriate to control the city’s traffic problems.

Planning Director Garcia has said that the land-use controls adopted by Houston differ from traditional zoning. Traditional zoning tells developers what they can and cannot do with their property. In Houston, Garcia says, land can be used for anything, “as long as it doesn’t negatively impact adjoining parcels,” a policy known as performance zoning. Of course, what is considered a “negative impact” depends upon one’s tastes and values. It is frequently anesthetic issue, and always a moral one. When the government is permitted to deter mine values—whether moral or esthetic—the values of some are forced upon others.

The growth of government is frequently a gradual process, as new controls are enacted to try to correct the problems caused by previous controls. The issue of zoning in Houston is an example of this. While land use has remained relatively free in Houston, much of the supporting infrastructure-such as water, sewage, and roads—is controlled by the city. Today, the city’s inability to plan future infrastructure needs is one of its primary ar guments in favor of developing the planning process. In a totally free society, where water, sewage, and roads would be provided by the private sector, the city would have no such concern.

The Outlook

Houston is a city ripe for zoning. The public readily accepts controls on land use, and the city soon will have a comprehensive plan in place. As more politicians and citizens openly call for zoning, it is only a matter of time before that demand is satisfied.

Houston has virtually no organized intellectual defense of property rights. Even those most directly affected by the city’s growing list of restrictions—the billboard companies and developers—support land-use controls.

The victims of land-use controls are sanctioning their own enslavement. Through appeasement and compromise, they are allowing the city to dispose of their achievements. They grant the city the power to control them, then timidly complain that the controls are excessive. By then, it is too late.

1.   B.C. Burchfield, “Thawing Houston Real Estate Market,” The Houston Post, December 29, 1929.

2.   Peter Brown and Kay Crooker. “We’ve Strayed Far from City Planning,” The Houston Post, April 17, 1988.

3.   Lynn Ashby, “Houston Overdue for Sensible Plan,” The Houston Post, June 3, 1982.

4.   Lynn Ashby, “Boom Town,” The Houston Post, March 4,1980.

5.   Brown and Crooker.

6.   For a fuller discussion of master-planned communities, see my article “Private Cities” in The Freeman, March 1989.

7.   Lisa Paikowski, “’Visual Pollution’ Target of Development Council.” The Houston Post, December 9, 1984.

8.   Rob Schmerler, “We Need to Look at Whales Right with Billboards.” The Houston Post, April 27, 1987.

9.   Bob Sablatura, “Council Vote Ignites Zoning Battle.” Hous-. ton Business Journal, September 22, 1986.