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University of Auckland, Faculty of Law LAWENVIR 401 Resource Management Law Paper in Lieu of Examination
Southern Sprawl: Land-use Regulation and its Effects in Houston, Texas.
By Andrew McIndoe, 1551269
Abstract: A combination of local government land-use regulations and private deed covenants have contributed to the maintenance of a very low population and employment density in Houston, Texas. This low density is reflected in the sprawling nature of the city’s urban form. This paper analyses how specific land-use restrictions, both public and private in nature, have contributed to this state of affairs. It then examines how these restrictions and the low-density urban form they promote have contributed to the twin problems of automobile dependency and social segregation in the city. It suggests that, despite the absence of formal use-zoning laws, private deed restrictions, and to a lesser extent City ordinances, have aided the creation of single-use residential and commercial zones that have exacerbated these two problems. It concludes that greater public regulation is required to mitigate the negative effects of sprawl, which are disproportionately harmful to the less wealthy citizens of the city.
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Introduction
Houston, Texas is unique amongst large American cities in that it has no zoning laws regulating land use. Use zoning, under which specified areas of land may only be used for certain uses such as residence or commerce, has often been criticised for producing urban sprawl, automobile dependency and social segregation in many American metropolises. Yet the example of Houston illustrates that a lack of use-zoning does not exempt a city from these issues. The city is one of the most sprawling in the United States. Houston’s paradigm of urban development, which combines a local government with a pro-growth and pro-low-density development outlook, and the creation and enforcement of land use regulations by groups of private citizens, has led the city to a well-deserved reputation as a “poster child for sprawl”. 1 At the same time, Houston is a highly automobile dependent city, and experiences high levels of social segregation.
This essay will examine how a range of regulations and legal instruments has led Houston to have one of the lowest urban densities in America, a key factor in its sprawl. It will illustrate how Houston’s political culture of laissez-faire individualism has led local government bodies to avoid instituting a use-zoning policy while leaving much land-use regulation to private citizens through private deed covenants. At the same time, however, the City government has sought to maintain a low-density city through a range of other regulatory measures. This essay will examine how both private deed restrictions and governmental regulation has contributed to Houston’s low-density urban form. It then argues that deed restrictions, like use-zoning regulations in other cities, have created single-use zones within the city, and have contributed to the same problems that use-zoning is often accused of causing, namely automobile dependency and social segregation. It will thus analyse how Houston’s low-density urban form has both contributed to, and is in turn perpetuated by automobile dependency, and will analyse how the encouragement of low-density urban development has increased social segregation, polarising the city between wealthy outer-ring suburbs and poor largely inner-city neighbourhoods.
Ultimately, Houston’s current method of controlling urban development is producing a more unliveable and unequal city. This essay suggests that the encouragement of low-density, private- transit-reliant development, while consistent with the political ethos of the city’s elite and business classes, is in fact detrimental to the wellbeing of many of its citizens.
1 Michael Lewyn “How Overregulation Creates Sprawl (Even in a City without Zoning)” (2004) 50 Wayne L Rev 1171 at 1177. 3
The Political and Administrative Context of Houston
In order to understand land use regulation in Houston it is necessary to briefly describe its political culture, local government structure, and history.
A map of the Houston region, with the Gulf of Mexico the east. Both of Houston’s major ring roads, the I-610 and Beltway 8, can be seen. Source: http://sktmaps.blogspot.co.nz/2012/10/map-of- houston-tx.html
Houston’s history of growth
Known today as one of America’s boomtown metropolises, Houston was founded on the inland Gulf coast of Texas in 1836 as a relatively humble mercantile city.2 From the opening of the Spindletop oil well in 1901, Houston developed into a pre-eminent global centre of the oil and petro-chemical
2 Zhu Qian “Planning a ‘World Class’ City without Zoning: the experience of Houston” in M Jenks, D Kozak and P Takkanon World Cities and Urban Form: Fragmented, Polycentric, Sustainable? (Routledge, Abingdon, 2008) 219 at 220. 4
industries. In 1914 the Houston Ship Channel connecting the city to the Gulf of Mexico was opened, precipitating the building of oil refineries in the 1920s and 1930s.3 It experienced a boom during the Second World War, supported by federal funding and private investment, and became the world’s largest petrochemical manufacturing site.4 The energy sector, as well as a growing range of other technical industries including medical research and NASA’s space centre provided the impetus for Houston’s dynamic growth throughout the 1970s and 1980s. The huge clerical and administrative apparatus required to sustain these industries led to a proliferation of large office blocks in the city; 205 office blocks over 100,000 square feet were constructed between 1970 and 1983.5 Houston’s economy has diversified in recent years: while the energy industry accounted for 60% of the city’s economic base in 1990, by 1999 that figure was down to 49%.6 It remains an economic powerhouse, with the metropolitan area’s Gross Area Product in 2006 reaching $325.5 billion.7
Today Houston is the fourth most populous city in the United States, with a population of 2.1 million as of 2010.8 Its metropolitan area has a population of 5.9 million.9 In geographic terms the city is vast. It is a “decentralised, low density city which sprawls more than 25 miles in each direction from downtown”, with various nodes of business “connected by hundreds of miles of freeway.”10 The city has a notably low population density compared with other American cities of a similar size.11 According to the 2010 national census it has a density of 3502 persons per square mile, compared to 27,013 per square mile in New York, 11,842 per square mile in Chicago, and 8092 per square mile in Los Angeles.12 The primary mode of Houston’s growth has been lateral sprawl: between 1974 and 2002, the city’s land area quadrupled from 941 km2 to 3724 km2.13 The land use policies that have encouraged this low-density urban growth will be discussed in a subsequent section.
Houston’s inner-city neighbourhoods are bounded by the I-610 beltway. However, only about 25% of Houston’s residents live within this “loop”; the majority of development has occurred outside the inner city.14 The loop thoroughfare is a feature of many large American cities: Houston, however, has not one, but two loop roads (the second being the ring-road known as Beltway 8), with a third being
3 Robert Dunphy Moving Beyond Gridlock: Traffic and Development (Urban Land Institute, Washington, D.C., 1997) at 144. 4 At 221. 5 Robert Fisher, “Urban Policy in Houston, Texas” (1989) 26 Urban Studies 144 at 145. 6 Qian, above n 2, at 221. 7 The City of Houston “Facts and Figures”
proposed as the city expands ever outwards.15 A self-professed “progrowth community”, the city “puts few restrictions on development … [and is] an auto-oriented, outward-moving metropolitan area.”16 Its booming suburban growth has resulted in “some of the largest and densest suburban activity centers – edge cities – that have ever been assembled.”17 If Houston’s model of sprawling development continues unchecked, it is likely that development will continue on the metropolis’ urban fringe, further expanding its surface area.18
15 Lewyn, at 1191. 16 Dunphy, above n 3, at 143. 17 At 143. 18 Oguz et al, above n 13. The researchers have modelled the Houston Metropolitan Area (Houston CMSA) urban growth to 2030, suggesting if current patterns continue, growth will continue to be lateral. 6
Administration and Political Culture
A map of the 11 City Council districts of Houston, as of 2011. The coloured areas indicate the incorporated areas of the City. Source: http://electioninfo.wordpress.com/2011/09/19/election- 2011-houston-city-elections/
The City of Houston is an incorporated home-rule municipality under section 5, Article 11 of the Texas State Constitution, having been granted a Charter from the Congress of the Republic of Texas in 1837, and again from the Texas Legislature in 1905.19 It is administered by its elected officials, the Mayor and the 16-member City Council, who must work within the constitutional framework of the City Charter.20 The Council passes ordinances and resolutions regarding the management of the city, and thus is the public body with the greatest control over planning and urban development in Houston. The Houston City government has authority to pass ordinances and resolutions within the city’s urban boundaries, as well as limited authority within its Extraterritorial Jurisdiction (ETJ) – a 5-mile band around the city boundaries, as mandated in the Texas Local Government Code.21 This includes the authority to implement Chapter 42 of the Code of Ordinances, which deals with the development and subdivision of land. The City of Houston has generally pursued an aggressive policy of annexing the
19 Charter, Code of Ordinances, City of Houston, Texas at footnote 1. 20 City of Houston “About City Government”
unincorporated land beyond its boundaries as it is empowered to do in the same Code.22 It is thus constantly enlarging the area in which it wields regulatory power.23
The strident growth of the City of Houston’s administrative territory is at odds with the relatively muted regulatory powers held by its public authorities. A significant feature of Houston’s political culture is that the city’s public governance and growth strategy is driven largely by the private sector rather than public bodies. Many commentators argue that this is a direct function of a strongly libertarian and anti-government culture in Houston: 24
Houston’s rhetoric is for limited government intervention, low taxes and low expenditure on public welfare, and a disinterest in social service and income redistribution programmes.
Indeed, Houston’s local government has a long taken a laissez-faire, highly non-interventionist approach. Unregulated free market capitalism has been in many respects the guiding ideology of its political and business elite,25 who are mistrustful of any manifestation of public governance which seems “to represent in fact or fantasy the implementation of limits on the economic prerogative and activity of the city's business community.”26 Government has been restricted – or, more accurately, has restricted itself – to the provision of basic services.27
Local government’s ideological reticence to involve itself too heavily in the exercise of governing is evident in public spending figures: in the early 1980s, Houston’s local government spent only $0.32 per person on urban planning, compared to $1.53 in nearby Dallas, and $7.24 in Kansas City.28 Historically, numbers of police have been extremely low compared to other large American cities, despite a high murder rate.29 Low local government spending may allow for low taxes, but it also has inevitable costs on public services and amenities. Houston has “an unusually limited array of city services and an infrastructure of ageing streets, [and] inadequate and ageing water and sewer systems”.30 The laissez-faire ethos by its nature entails that the burden of securing most public goods lies upon private citizens. Civic associations in richer areas have generally been able to afford to pay for amenities such as street lighting and road sealing; less wealthy neighbourhoods have often had to go without these basic goods.31 Public antipathy to active governance is evidenced in the continual
22 Texas Local Government Code, s 43.021. 23 Joe Feagin “The Social Costs of Houston’s Growth” (1985) 9 International Journal of Urban and Regional Research 164 at 164, 181. 24 Qian, above n 2, at 224. 25 Feagin, at 166. 26 Fisher, above n 5, at 146. Interestingly, he argues further that even the city’s poor and middle-class have bought into this free-market philosophy – or at least remained quiescent about its ascendancy. See 145. 27 At 144. 28 Fisher, above n 5, at 144. 29 At 149. 30 Feagin, above n 23, at 168. 31 Fisher, at 153. 8
public rejection of proposed use-zoning laws every time they have been proposed by the City government in referenda (in 1948, 1962 and 1993).32 Qian attributes this to a general perception that single-use zoning would be “a violation of private property and personal liberty”, and perhaps even akin to socialism, a much-maligned label in the United States.33 The laissez-faire ideology underpinning civic life is also evident in the complete absence of state or city income taxes in Houston.34
Thus, in line with this libertarian ethos, instead of strong public administration, the governance of the city – including the provision of many services, the creation of urban development strategy, and the regulation of land use – has lain with the private sector. Private bodies have often either undertaken planning themselves, or have influenced or led public body planning processes.35 Local government politics in Houston has always been heavily influenced by the private sector, leading some to term the city’s administration as a form of “privatized politics”.36 Fisher notes the historically close association between the Houston Chamber of Commerce, a private lobbying body comprised of local corporate Chief Executives, and the City government. The Chamber has been able to influence City government through: 37
frequent interchanges of Chamber personnel with city hall, social contacts and informal meetings, co-optation of potential opponents, propaganda dissemination, provision of research findings and plans to policy makers, and intensive lobbying.
This private sector-led governance has resulted in urban policy heavily weighted towards economic growth at the expense of the provision of public services and amenities.38 For example, the prioritising of large transport infrastructure projects, particularly the creation of hundreds of miles of freeways is a clear sign of a focus on growth rather than other public issues such as liveability and air pollution. In 2005 Houston had nearly twice as many miles of freeway as Boston, despite only having 10 percent more inhabitants, and had nearly as many miles as Chicago, despite that city being twice as populous as Houston.39 It is clear that “local political history and culture determine distinct urban development patterns”: the primacy of the private sector in Houston has thus led to planning outcomes that
32 Alexander Garvin The American City: What Works, What Doesn’t (2nd ed, McGraw-Hill, New York, 2002) at 429. 33 Qian, above n 2, at 219, 226; Dunphy, above n 3 notes that opposition to a proposed 1947 zoning ordinance decried zoning as socialist and un-American, at 144. 34 Fisher, at 146. 35 Qian, at 226. 36 See Fisher, at 147, Qian, at 223, 233. 37 Fisher, at 148. 38 Fisher, at 144, Qian, at 224. 39 Lewyn, above n 1, at 1191. 9
generally favour private over public interests.40 Feagin argues that the lack of emphasis on the provision of public services has had negative social costs. As the private sector is concerned largely with maximising its own profits, it will try and pass as many costs as possible on to third parties – including the public. In allowing this practice to be the driving force behind urban development planning, government actually “cooperate[s] in inflicting social costs on the urban citizenry.”41
Another way in which in the private sector has asserted substantial regulatory power in Houston is in the creation of land use regulations. The regulation of land use is an illustrative example of the way in which private regulation has materially affected the form of the city. While the Houston City government has enacted a relatively comprehensive code of development (discussed subsequently), private bodies have “filled the gaps” left by the lack of a formal zoning policy.42 Homeowner associations and other civic groups have enacted various codes that limit land use, and set out minimum standards for land use in individual neighbourhoods, almost always in the form of restrictive covenants. These covenants are created by developers and homebuilders, and can be enforced by residents of the subdivision in which the covenant applies, homeowners’ associations, or the Houston City Attorney. Importantly, these covenants generally run with the land, and so bind future purchasers and preserve the aesthetic value of neighbourhoods in perpetuity.43 The aim of this private regulation is to “protect property values, amenities and homeowners’ quality of living in a neighbourhood”:44 the provision of services is often of secondary importance, if valued at all.45
The details of these private regulations will be discussed in detail in the next section. What is important to note is that on a broad level, land use is often regulated by private groups in the context of individual, distinct neighbourhoods, rather than at a city-wide level. One of the central drawbacks to leaving land use regulation to private bodies is that they can only regulate land over which restrictive covenants exist. Because they are by nature focused on particular neighbourhoods or subdivisions, they are ill-suited to addressing broader infrastructure issues such as traffic regulation, water supply and pollution control.46 Yet the prevalence of private land use restrictions is amenable to local government in Houston because it “shift[s] the burden [of enforcement] from the public to the private sector”, and is consistent with a laissez-faire approach to government.47
40 Qian, above n 2, at 234. 41 Feagin, above n 23, at 165-166. 42 Qian, at 219. 43 At 226-227. 44 At 227. 45 At 227. 46 Garvin, above n 32, at 428-429. 47 Qian, at 228. 10
The primacy of “privatised” governance and planning in Houston has been criticised for creating or exacerbating a number of social and environmental problems. The contribution of Houston’s land use regulation system to the related issues of automobile dependency and social stratification will be dealt with in detail subsequently. One final issue that should be noted briefly is the democratic deficit created by the Houston government’s abrogation of its planning and regulatory powers. Fisher notes how there is little space for citizens to participate in or critique the planning process and urban development strategies, as these are now largely in the hands of private bodies.48 Poorer citizens in particular are not favoured by a system of private land use regulation which requires private money to fund enforcement, and so have very little ability to influence the decisions made about their neighbourhoods and living environments. 49 The lack of avenues for public participation in Houston’s urban development is something that can probably only be addressed by a more responsive local government assuming greater oversight over the city’s planning and land use regulation.
Land Use Regulation in Houston
It is the thesis of this paper that the unique system of simultaneous public and private land use regulation in Houston has generated several harmful social and environmental problems. This section will outline the nature of land use regulation, focusing first on City government measures, and then on private covenants. In doing so, it will explain how each measure contributes to Houston’s low-density, or ‘sprawling’ form. It is the city’s low density that has exacerbated the city’s automobile dependency, which will be discussed subsequently. Additionally, Houston’s land-use controls have contributed to social segregation in the city, which will be analysed in the final section of this paper. In this section each form of land use regulation will be addressed in turn, outlining how it encourages a low-density urban form.
Local Government Regulation
Despite the lack of a formal zoning policy and a laissez-faire philosophy, Houston’s City government has enacted a wide range of land-use regulations that have the effect of encouraging low-density development in the City and its ETJ. It is interesting to note that this regulation of urban form is present despite the city’s alleged antipathy towards government intervention in the market. As Talen notes, “despite the mythology of rugged individualism, rules have always been an integral part of the
48 Fisher, above n 5, at 147. 49 Qian, at 230. 11
American experience”.50 Admittedly, many of Houston’s ordinances are not in and of themselves the cause of urban sprawl in the city – many promote low-density no more than regulations in many other cities. But it is clear that they favour low-density development over high-density infill development. And when their effect is combined with private deed restrictions that promote low population density to a much greater degree (discussed subsequently), the effect on urban form is great. The following land use restrictions are set out in the city’s Code of Ordinances:
Minimum Lot Size
The City of Houston mandates a minimum lot size for each property that is part of a subdivision: this is a major instrument in maintaining low-density urban form in Houston. The Code of Ordinances requires that detached single-family residential lots in the City’s ETJ (i.e. in suburban areas) have a minimum size of 5000 square feet, while properties in the City itself must be at least 3500 square feet.51 Until the Code was changed in 1998, the 5000 square feet minimum applied to lots in the city as well as in the ETJ.52 In an exception to the rule, since 1998 subdivision lots in the city may be as small as 1400 square feet (on average, throughout the whole subdivision),53 provided that, inter alia, more than 60% of the lot area is not covered by buildings, or more than 75% if the lot is on the corner of a block.54 The ability to build in this way, especially in the City itself, has provided the opportunity for the construction of more townhouses.55 In addition, developers may create lots smaller than the mandated minimum area, but must compensate by providing a proportional amount of open space in the subdivision which is, amongst other things “reasonably dry and flat”.56
To complement the minimum lot size requirements the City Council has also adopted an ordinance allowing for neighbourhoods within the city that do not have a minimum lot size established by deed restrictions to apply for a “special minimum lot size” to be designated in their area by the City Council.57 This minimum lot size will be equivalent to the smallest lot in the largest 70 percent of lots in the proposed block or area, or the smallest lot in the largest 60 percent of lots in areas within a designated historic district.58 Thus, areas of the City with lot sizes that are predominantly much larger than the new 3500 square feet minimum are able to apply to have their lower density of settlement legally protected. Indeed, of all applications made for such designations between 2007 (when the new rule was introduced) and 2012, the vast majority have secured minimum lot sizes above 5000 square
50 Emily Talen City Rules: How Regulations Affect Urban Form (Island Press, Washington D.C., 2012) at 4. 51 Code of Ordinances, City of Houston, Texas, § 42-181(a) 52 Lewyn, above n 1, at 1181. 53 Code of Ordinances, City of Houston, Texas, § 42-181(c). 54 § 42-184. 55 Qian, above n 2, at 225. 56 Code of Ordinances, City of Houston, Texas, §§ 42-182, 42-183. 57 § 42-197. 58 § 42-202. 12
feet.59 The City Council states that the purpose of the provision is to “to preserve the lot size character of a single-family residential neighbourhood”,60 and it has been noted in Houston media that the ordinance has made it easier for neighbourhoods to maintain their relatively low densities than it was under the previous more stringent regulations.61 The City of Houston itself notes that the special minimum lot size ordinance is largely to protect against the redevelopment of some residential neighbourhoods into townhouses.62 As the construction of townhouses would promote denser development, it can be clearly inferred that the Houston government has a preference for maintaining low-density settlement, at least where its citizens wish to maintain it.
These regulations have all contributed to the maintenance of the extremely low-density pattern of settlement in Houston. The City of Houston justifies its minimum lot size policies by claiming that they allow Houstonians to “maintain their neighborhood’s established character” and to “[p]reserve the existing lot sizes and prevent incompatible development.”63 Certainly, the mandating of low- density development works to preserve a pattern of dispersed and roomy suburban settlement, with no crowded or high-rise structures to undermine the suburban nature of a subdivision. As of 2005, the city had a housing density of two houses per acre.64 This is far below the minimum density required to usefully support a public transit system, which Lewyn estimates is about seven to fifteen dwellings per acre.65 Such spread out settlement means that relatively few people live within easy walking distance of bus stops or train stations, and so such transit networks become impractical. Government will often see no need to invest in a public transit system that will not usefully serve the public, thus further exacerbating the problem and implicitly encouraging further low density development.66 Local government also faces higher costs in providing infrastructure such as water and sewerage to a more dispersed population.67 It is important to note that the City of Houston further encourages low-density development by making these lot sizes minimum standards: developers are free to require even larger lots in private covenants with homeowners.
59 City of Houston “Minimum Lot Size Approvals” (2012)
The 1998 changes to allow smaller lot sizes within the City limits was a positive step towards denser residential development that could have mitigated some of the detriments of low-density development. In particular, the ability to reduce lot sizes to 1400 square feet allowed developers to
The Houston-Galveston Area Council has forecasted significant population growth in Houston that will see the city spread laterally. Unless measures to promote a higher population density within existing boundaries are implemented, the city will continue to expand outwards. Source: http://agrilife.org/highlandbayou/project-data-2/highland-bayou-characterization/land-use-and- population/ create townhouse sites to support denser habitation. Indeed, townhouse development inside the I-610 has increased since the regulatory changes, and some inner-city residential neighbourhoods are experiencing periods of intensification and regeneration.68 However, the new ordinances have ultimately proved relatively insignificant in halting low-density growth in Houston. This is for a number of reasons. Firstly, the new ordinances are not retrospective, and thus apply only to the creation of new subdivision lots. Thus, the vast majority of residential properties in Houston, which were platted before 1998 (as of 2005, only 1.4 percent of Houston’s dwelling-houses had been built since 1998),69 remain the same size, and so density remains low in many areas.70 Furthermore, most new development since 1998 has occurred outside the City limits: these lots are still required to be at
68 Qian, above n 2, at 225. 69 Lewyn, above n 1, at 1182. 70 Qian, at 225. 14
least 5000 square feet in size. Before the 1998 changes to the Code, the mandating of minimum lot size naturally caused the city to grow outwards. As the inner-city, with an effectively mandated minimum density, reached saturation point, developers had to turn to the city fringes to create new residential subdivisions.71 While smaller lots are now permitted in the City, these new rules only apply to new developments, and so do not mitigate the low-density suburbs already built in the City and the ETJ.
Building line/setback regulation
Houston’s city code, like most cities’, also requires that structures be sited a minimum distance from the sidewalk. The setback distance differs depending on the type of street and type of building concerned: for example, buildings abutting a designated major thoroughfare must be set back 25 feet from the sidewalk,72 single family residential structures must be set back 20 feet on local streets,73 while buildings of any type within the central business district do not need to be set back at all.74 Like with special minimum lot sizes, the Council allows homeowners in areas without deed restrictions that specify building setbacks to apply for special minimum building lines to be established in their neighbourhoods. Once again, this is attributed to a desire to maintain neighbourhood character and “ensure that future buildings conform to existing building lines.”75 The special minimum building line will be the smallest setback “of the 70 percent of the buildings in the proposed area farthest from the public street”, or of 60 percent of buildings in historic districts.76
The setback requirements in both residential and non-residential areas contribute to low-density urban form by reducing developers’ ability to build more apartments or other structures on a lot (provided of course that the minimum lot size requirements would have allowed this). The setback area in front of both businesses and apartment buildings is often devoted to parking space instead of supporting more residential or business structures. Population and employment density is thus decreased.77
Minimum parking requirements
In a city well known for high rates of automobile use it is unsurprising that the City Council requires developers to include certain numbers of off-street carparks within their subdivisions. For subdivisions of single-family residential use, developers must ensure at least 2 off-street parking
71 Lewyn, at 1181. 72 Code of Ordinances, City of Houston, Texas, § 42-152. 73 § 42-156(b). 74 § 42-151(a). 75 City of Houston, above n 62. 76 Code of Ordinances, City of Houston, Texas, § 42-173(a). 77 Lewyn, at 1185-1186. 15
spaces per dwelling unit on each lot.78 Furthermore, where a property is served by a shared driveway or access easement, and contains six or more dwelling units, an additional car park must be added for every six dwelling units.79 Apartment buildings must be accompanied by 1.33 parking spaces per 1- bedroom apartment, and 1.25 for an ‘Efficiency’ apartment:80 both thus require more parking spaces than there are apartment-dwellers. As further illustrations of the mandating of generous parking, each Houston hospital bed must be accompanied by 2.2 parking spaces, while bowling alleys must provide 5 spaces per lane.81 In both cases, the number of car parks is greater than the number of people who would be expected to use that facility.
The provision of copious parking spaces has further contributed to Houston’s low density. Just as with setback requirements, requiring businesses and residential developers to provide lots of parking spaces means that they can’t use that space for further dwellings or business space. If developers were able to put in only as many parking spaces as tenants or workers actually required, they could build on the extra space created.82 This would create a greater population density in residential areas, and greater employment density in business areas. Parking requirements contribute to the maintenance of low-density urban form in two additional ways. Firstly, they “prevent infill redevelopment on small lots, where fitting both a new building and the required parking is difficult and expensive.” Secondly, they stop older buildings which do not include much or any off-street parking being used for new uses (such as apartment buildings) which require a certain number of carparks.83
Minimum parking requirements may be useful in ensuring that developers do not provide insufficient parking, and force customers or tenants to park on the street at the cost of surrounding businesses or residents. However, when government mandates a minimum amount of parking, there is a risk that this will be higher than the amount of parking that the market actually requires. In this respect, the private sector may be best suited to decide on the provision of a sensible number of parking spaces above a lower minimum, rather than the City government prescribing overly-generous parking areas.84 Best practice for car parking provision usually entails a consideration of a parking facility’s site and market area as determinants for how much parking to provide. Factors such as current supply and demand for parking spaces in an area, building occupancy, and the potential future development in the
78 Code of Ordinances, City of Houston, Texas, § 42-186(a). 79 § 42-186(b). 80 An efficiency apartment is an American term for a studio apartment – that is, a one-room apartment in which a bed, kitchenette and living area are contained in one room. 81 Code of Ordinances, City of Houston, Texas, § 26-492. 82 Lewyn, above n 1, at 1185. 83 Donald Shoup The High Cost of Free Parking (American Planning Association Planners Press, Chicago, 2011) at xxxi. 84 Shoup at xxxviii advocates for parking being supplied ‘in a fair market’, instead of government mandating minimum parking requirements. 16
area all bear on the amount of parking spaces to be provided.85 However, when government sets a blanket minimum parking requirement, these factors are not always fully taken into consideration, and this risk of over-provision occurs.
In addition, the requirements of both parking and setback regulations have meant that “Houston's sea of government-mandated parking is usually in front of most buildings”, where building is prohibited.86 The contribution of this trend to automobile dependency and the creation of anti- pedestrian cityscape will be explored in a subsequent section. The Houston Chronicle has noted in a recent opinion editorial the desire of substantial numbers of Houstonians to focus on creating a higher-density city, observing that “you can't get to high density if you mandate paving every other square foot in the city [with parking]”.87
Minimum road width
City ordinances provide for minimum widths of rights-of-way, including all streets. Wide streets have been a constant theme in the history of Houston’s urban form: the city’s founders built regular streets that were 80 feet wide, while the major thoroughfare, Texas Avenue, was 100 feet wide.88 Today, major thoroughfares must generally be a minimum of 100 feet wide, while local and “collector” streets must be at least 50 or 60 feet wide depending on specific circumstances.89 This figure includes sidewalks, but as sidewalks in Houston are on average only 4 feet wide, or sometimes are non- existent, a major thoroughfare will generally be upwards of 90 feet wide, and a local road over 40 or 50 feet wide.90 As with large lots, parking requirements and building set-backs, large minimum road widths reduce both population and employment density by reducing the land area on which businesses and homes can be built.91 In one study, Houston had the greatest street area per capita of 15 major American cities. It had 1585 square feet of street area per person compared to 345 square feet in New York, 424 square feet in Chicago, 741 square feet in Los Angeles, and 1575 square feet in its Texan neighbour, Dallas.92
85 John Dorsett “Downtowns, Cars, and Parking” in Roger Kemp (ed) Cities and Cars: A Handbook of Best Practices (McFarland & Company, Jefferson, North Carolina, 2007) 15 at 16-17. 86 Lewyn, above n 1, at 1183. 87 Michael Skelly and Jeff Kaplan “Let businesses decide parking” (March 4 2013) Houston Chronicle online
Houston’s required street width is extremely wide compared to required minimums in other American cities.93 For example, Portland, Oregon, is often held up as a model for compact, high-density growth: a 1991 regulation – the so-called “skinny streets” ordinance – allowed for some streets in residential areas to be only 20 feet wide, with parking on one side, or 26 feet wide with parking on both sides of the street.94 This ordinance applied to areas where lots were over 5000 square feet – it was thus a method of mitigating the low-density of large lot sizes that Houston could learn from if it too wants to become a more densely-populated city.
Private Land Use Regulation
As we have seen, for a city with a decidedly laissez-faire governmental culture, the City of Houston is active in regulating land use. On the other hand, private citizens have an equally prominent role in devising and enforcing land use regulation in Houston. For, while the City regulates the use of land in the ways described above, it does not zone specific areas of the city for specific residential, industrial or commercial use (i.e. single-use zoning). Instead, the City essentially treats Houston as one large zone (although there is a distinction between the City proper and the ETJ in some of the above planning ordinances) in which the location of different land uses is not regulated. The absence of use- zoning laws has contributed to the rise of homeowners’ associations and other citizen groups who control land use and planning standards in their own neighbourhoods, largely through the use of restrictive deed covenants.
Deed covenants are contractual agreements that limit what property-owners can do with their land, or stipulate what they must do with it. They cover a multitude of land use issues. As private legal instruments they differ from agreement to agreement, although there are often many commonalities. Some covenants cover similar form issues as government zoning and planning laws, including limiting land use to residential habitation in specific areas, requiring minimum lot sizes and minimum setbacks, and limiting building height.95 Other covenants impose restrictions generally outside the scope of government regulation, such as architectural and aesthetic requirements, minimum build costs, and requirements to maintain the lot or exterior of a house to a certain standard.96 Before the advent of zoning and subdivision regulation, restrictive covenants were the primary means by which neighbourhood land use was regulated in the United States.97 Originally, they were used to “enforce a certain “quality” of residential character … [and] to maintain low-density residential quality and to
93 Lewyn, at 1187. 94 John Fernandez “Boulder Redesigns Residential Streets to Focus on People Rather than Cars” in Roger Kemp (ed) Cities and Cars: A Handbook of Best Practices (McFarland & Company, Jefferson, North Carolina, 2007) 65 at 68. 95 Qian, above n 2, at 227. 96 Bernard Siegan Land Use Without Zoning (Lexington Books, Lexington, Massachusetts, 1972) at 34. 97 Talen at 4. 18
cater to a certain economic class”.98 Restrictions such as minimum build cost could limit the ability of lower-income residents to live in certain areas, while deep setback requirements limited the amount of land that could be built on, thus making multi-family apartment blocks less feasible in areas of stand- alone single-family residences, for example.99
While most other major American cities have adopted use-zoning as the predominant form of land- use regulation, in Houston deed restrictions are still the norm. It is estimated that, as of 2008, 50-60 percent of residential land in Houston was subject to restrictive covenants.100 Covenants are usually created by subdivision developers before subdivision lots have been sold, to bind future purchasers. Most covenants state that any changes to land use restrictions must be approved by all other lot owners in the subdivision.101 These restrictive covenants run with the land, thus binding future purchasers and so maintaining a neighbourhood’s character and design standards despite changes in home ownership.102 Nevertheless, many have specific termination dates, although these are generally accompanied by provisions for automatic extension of the covenant unless a majority of homeowners in a subdivision decide otherwise.103
The purpose of deed covenants remains essentially the same as it was in the early years of the 20th century: to “protect neighbourhoods from change that would decrease property values”.104 Thus enforcement lies primarily in the hands of subdivision residents, civic clubs and homeowner associations in the neighbourhoods where deed restrictions apply, who can sue for violations of covenants.105 In this respect, land use regulation enforcement is largely the preserve of the private citizenry. This is a dynamic that sits well with the city government’s desire to shift the burden of governance onto the private sector.106 However, despite the apparent primacy of the private sector in covenant enforcement, the public sector in Houston does play a unique role as well. Under the Code of Ordinances:107
(a) The city attorney is authorized to file or become a party to a restriction suit … The city attorney is further authorized, as part of a restriction suit, to seek to compel the repair or demolition of any structure or portion thereof that is in violation of this article to the extent of noncompliance.
98 At 20. 99 At 21. 100 Qian, at 226. 101 Siegan, at 34. 102 Qian, at 226. 103 Siegan, at 34. Christopher Berry “Land Use Regulation and Residential Segregation: Does Zoning Matter?” (2001) 3 American Law and Economic Review 251, states that most covenants are automatically renewed every 20 to 30 years, at 261. 104 Fisher, above n 5, at 152. 105 Berry, above n 103, notes that suits are technically civil litigation for breach of contract, at 261. 106 Qian, above n 2, at 228. 107 § 10-553. 19
Restriction suits are suits for violation of various restrictions that are generally included in deed covenants.108 Civil penalties of not more than $1000 per day are to be enforced against those violating deed restrictions.109 Siegan notes that this public function is particularly useful to a private resident seeking to uphold a covenant “who by himself might be unwilling to carry the financial burden.”110 Additionally, by putting some of the burden of enforcement upon government, these provisions “address the collective action problems involved in monitoring and enforcing deed covenants.”111 In sum, the enforcement of private deed restrictions is partly a public exercise, and thus uses public funds to enforce land use regulations. Arguably then, in practice, there is little difference between publically-enforced zoning laws throughout America, and Houston’s public enforcement of private covenants.112
Because deed restrictions often stipulate requirements for such things as minimum lot sizes and setbacks that are greater than the City-mandated minimums, they can have an even greater effect on the city’s population density. As described above, the more land on which people are not living, the less dense the city is.
One unique effect of deed restrictions is to establish what is in effect single-use zoning in Houston.113 Although the city has no zoning laws stipulating what uses land may be put to (e.g. residential, commercial, industrial), the segregation of land use has been achieved to nearly the same degree by deed restrictions.114 Covenants that require land to be used only for residential purposes, for example, maintain the residential character of neighbourhoods in much the same way as a zoning ordinance would. The implications of this on automobile dependency and social segregation will be discussed subsequently.
Density and Automobile Dependency
The maintenance of Houston’s low-density urban form by land use regulation and restrictive covenants has ensured that the city and its citizens are generally dependent on automobiles for business and day-to-day life. This section of the essay will broadly outline how low-density growth, including suburbanisation, has led to widespread reliance on cars in Houston. Then it will analyse
108 § 10-551. 109 § 10-552(a). 110 Siegan, above n 96, at 35. 111 Berry, above n 103, at 263. 112 Lewyn, above n 1, espouses this view at 1190-1191. 113 Qian, at 226. 114 At 227. 20
how the specific land use policies and instruments discussed above have contributed to the city’s automobile dependency.
Cars and Suburbs: a symbiotic relationship
Houston’s dependence on the automobile is symptomatic of a trend that has shaped the urban form of nearly all American cities since the end of the Second World War. From the 1950s onwards the United States experienced the growth of suburbs around its historic city centres, facilitated by the growing availability and accessibility of private automobiles:115
Low-density housing [therefore] became more feasible, and as a reaction to the industrial city, town planners began separating residential and business centers by zoning … The city began to decentralize and disperse.
These low-density suburbs grew on the urban fringes, spreading outwards. As with many “New World Cities” there was little concern about land availability as a constraint on growth: land was seen as a nearly infinite commodity to be annexed and developed.116 The space to build a stand-alone home and the space to build new roads to access this home was an integral element of mushrooming urban growth. The suburbanisation of American cities was fuelled by an ideology that feted private home- ownership and stand-alone family houses,117 and mistrusted ‘the city’, perceived of as a crowded, industrial space, both unsanitary and socially debilitating.118 Other cultural factors contributed to suburban sprawl, including the desire for a sense of privacy that low-density settlement can provide,119 and a belief that a suburb, away from the tightly-packed (and potentially dangerous) mass of humanity in the central city, was the best place to raise children.120
While growing automobile ownership certainly allowed for suburban growth, this same growth contributed to an increasing dependence on the automobile for suburbanites to the point where “use of an automobile became not so much a choice but a necessity in the Auto City.”121 Vital to the urban growth project was the construction of thousands of miles of highways to provide vehicular access to the new fringe developments. The advent of the federal interstate highway system in 1956, combined with Texas state road-building efforts of the same time saw a proliferation in freeways and roads
115 Peter Newman and Jeffrey Kenworthy Sustainability and Cities: Overcoming Automobile Dependence (Island Press, Washington D.C., 1999) at 31. 116 At 36. 117 At 63. 118 At 37. 119 Dunphy, above n 3, at 33. 120 Newman and Kenworthy, above n 115, at 64. 121 At 31. 21
throughout the state, including in Houston.122 Houston’s city government agencies, with state and federal aid and often in conjunction with private sector interests, have also invested in large amounts of public roads to service the city’s ever-expanding suburbs. As of 2005, Houston was a national leader in total freeway mileage, as described above.123
122 Dunphy, above n 3, at 144. 123 Lewyn, above n 1, at 1191. 22
While there have been recent expansions of aspects of Houston’s public transport networks, the various agencies with responsibility for transportation planning in the region continue to prioritise the expansion of the roading network. While some cities have attempted to mitigate the negative effects of automobile dependency, including traffic congestion and environmental pollution, Houston, “rather than being troubled by automobile dependency … accepts it and unrepentantly makes massive road improvements”.124 The Texas Department of Transportation (TxDOT) has earmarked over US $1 billion for the construction of new roads and the expansion of existing ones in its Houston district in 2014.125 The Houston-Galveston Area Council, the public agency responsible for coordinating transportation planning in the Houston region forecasted in its 2011-2014 Transportation Improvement Program that of the $9.4 billion to be spent on “regionally-significant” transportation projects in that period, $5.4 billion would go to projects for “the construction, widening, rehabilitation and maintenance of the region’s roadway system”.126 This is compared to funding for bicycle and pedestrian improvements of $78 million.127 The continuing expansion of Houston’s road network encourages and to a large extent necessitates automobile use. Houston government agencies’
124 Dunphy, at 143. 125 Dug Begley “Boom in road construction continues into next year” (December 23 2013) Houston Chronicle online
The Katy Freeway in west Houston, opened in 2008, and which includes a tollway in the middle lanes, is just one example of Houston’s continual appetite for large-scale roading projects. Source: http://swamplot.com/katy-freeway-construction-officially-done/2008-10-29/
ideological commitment to road-network expansion is premised on the assumption that road-building is “economic, normal, and necessary”.128 And crucially, just as highway construction theoretically provides ease of access between the city and the suburbs, this ease of access encourages further urban development on the city fringe. This in turn seems to justify the expansion of the highway network which is required to serve these low-density developments: it is a self-perpetuating cycle of development requiring roading, and roading prompting development.129 As Lewyn notes: “Houston's government [has] spent its way to sprawl”.130
At the same time as promoting automobile use, Houston’s low-density settlement pattern has discouraged the flourishing of an effective public transportation network. The lack of public transport in turn increases automobile dependence. As mentioned earlier, low population density makes public transport impractical because “very few people will live within walking distance of a bus or train stop, which in turn means that very few people can conveniently use a bus or train”.131 Public transport in the Houston (Harris County) area is administered by the Metropolitan Transit Authority (METRO), a publically-created corporation. METRO maintains both bus and light rail networks in Houston. However, low ridership reflects the supremacy of the car in the city. Use of METRO transit lines, including bus, light rail, vanpools, and paratransit, has declined. In 2006 these services received 103
128 Newman and Kenworthy, above n 115, at 62. 129 Lewyn, above n 1, at 1193. 130 At 1191. 131 At 1180. 24
million trips: in 2012, only 84 million trips were made.132 Houston still has some of the lowest rates of public transit ridership in America: in 2003, 88 percent of commuters still travelled to work by car.133 As discussed above, Houston’s low population density has justified a lack of local government promotion of public transport. Newman and Kenworthy’s statistical analysis shows that low-density cities have both lower transit cost recovery (i.e. the amount of money that government recoups on public transit) than denser cities, and that the relative governmental priority for transit over roads declines as urban population density decreases.134 As public transit becomes more costly, it is generally a less favourable option for the administrators in charge of public purse-strings. Instead, most public bodies in Houston seem to favour continued investment in automobile-oriented investment.
How Land Use Regulation Encourages Automobile Dependence
This section explores how specific land regulation policies and instruments have led to low density, and thus automobile dependence in Houston.
Policies such as minimum lot sizes and setback requirements explicitly require neighbourhoods to have low population density. The link with auto-dependence is thus relatively clear. Low density of housing and businesses reduces the walkability of an area: greater distances between homes in residential areas, and between businesses in commercial areas mean that relatively few businesses or houses are within comfortable walking distance of other businesses or houses. People generally have to use their cars to get where they want to go.135 As discussed above, this low population density cannot support wide-reaching public transit networks, meaning that cars are by default the primary means of travel. There are a range of other City regulations that decrease neighbourhood walkability and increase automobile dependence. For example, the requirement that intersections along major thoroughfares be at least 600 feet apart creates long blocks that are not easily walkable by pedestrians.136 To get to the opposite side of a block, pedestrians must walk a much greater distance than if there were more streets intersecting the block which they could take: many will use their cars where they might otherwise have walked.137 The pro-automobile ethos of the City of Houston is very much apparent in such ordinances.
132 Dug Begley “Record U.S. transit ridership not matched in Houston” (March 10 2014) Houston Chronicle online
Ordinances stipulating minimum parking requirements and street widths decrease density, and so contribute to automobile dependence in the same way as the regulations just described.138 However, both also encourage the use of cars in other less obvious ways. The combination of minimum parking requirements and setback ordinances has resulted in most Houston businesses and apartment blocks locating their parking spaces in front of their buildings, adjacent to the street or sidewalk. Pedestrians are therefore forced to walk through an “ocean of parking” to reach the premises.139 This decreases walkability because it creates a visually unattractive space for pedestrians, lengthens the distance pedestrians must walk to reach their destination, and possibly puts pedestrians in danger by making them walk through areas used by motorists.140 Driving thus becomes a more attractive option.
In addition, because property owners must provide an overabundance of parking (i.e. at an artificial level higher than that which the free market would require), the market price of parking effectively becomes zero.141 This parking is not, however, “free”. Instead, the cost of maintenance and upkeep of car parks and associated costs, as well as the loss of income from rent and potential development on the car-parking site, falls upon business-owners and developers.142 These costs are then passed on to consumers in the form of higher prices for goods and services. As Lewyn notes:143
It follows that minimum parking requirements constitute a government-mandated transfer of wealth from nondrivers to drivers, and thus encourage driving and discourage other forms of commuting.
As Shoup notes, people who cannot afford cars are forced to pay for parking spaces that they will not use. At the same time, drivers are encouraged “to buy more cars and drive them more than they would if they had to pay separately for parking.”144 Minimum parking requirements can therefore be seen to simultaneously encourage automobile dependency both by reducing density, and by subsidising drivers at the expense of non-drivers.
Minimum streets widths, as well as decreasing density and so encouraging automobile use, also encourage drivers to drive faster. It has been found that wider streets subconsciously encourage drivers to speed up.145 Large building setbacks further enhance a driver’s perception of open space, and thus prompt him or her to speed. In order to stop speeding, it is recommended “to keep streets
138 Dunphy, for example, states the general rule that “low-density development means more automobile trips” at 33. 139 Lewyn, at 1184. 140 At 1184-1185. 141 At 1186. 142 Dorsett, above n 85, at 15. 143 At 7. 144 Shoup, above n 83, at xxxviii. 145 Dan Burden “Cities, Streets, and Cars” in Roger Kemp (ed) Cities and Cars: A Handbook of Best Practices (McFarland & Company, Jefferson, North Carolina, 2007) 7 at 10. 26
physically or visually narrow”: requiring large minimum widths and large setbacks means that neither is able to be achieved on many of Houston’s roads.146
Private land use restrictions have an equally aggravating effect on automobile dependence. Covenant restrictions can contribute to low-density urban form and thus increased car usage by requiring minimum lot sizes and building set-backs, in the same way that public regulation does. However, they also have the effect of segregating land use, which is a key factor in increased automobile dependence. Traditionally, single-use zoning’s mandated segregation of land uses into residential, commercial and industrial zones has been seen as increasing car usage by requiring people to travel large distances to visit another usage zone (for example, a citizen living in a residential area wanting to go to a mall in a commercial area). But although it does not have such zoning policies, land use in Houston is “only slightly less segregated [in land-use] than in most cities with zoning codes”.147 This is largely due to deed restrictions which permit only certain types of land use, and so maintain the homogeneity of residential areas.148 Residential areas therefore become not only single family, but single use.149 Thus, a resident of a covenanted subdivision who wants to go shopping, must travel to an area where shops are permitted to be built: such a journey will probably take place in a car because of the substantial distance involved.150 So while single-use zoning – and its governmental administrators – are often blamed for the car usage required by land use segregation,151 Houston is a salutary example of how private regulation can have much the same effect. In addition, the state of affairs in Houston demonstrates how the residential homogeneity sought by land use segregation generally comes at the expense of the walkability that mixed-use neighbourhoods are capable of producing.152
Land Use Regulation and Social Segregation
146 At 10. 147 Lewyn, above n 1, at 1191. 148 Qian, above n 2, at 233. It should be noted that Qian continues to say that: “nevertheless there is more commercial strip development along major arterial streets than in zoned cities, a larger than average number of oddly mixed land uses… and one of the tallest buildings in the world outside of a downtown area”, at 33. Siegan, on the other hand, argues that the free market naturally leads to separation of incompatible land uses on the basis that “certain locations and areas simply are economically more suitable for certain uses”, at 73-74. 149 Talen, above n 50 at 74. 150 Dunphy, above n 3, at 33. 151 See Lewyn’s discussion at 1191. 152 See Karina Pallagst Growth Management in the US: Between Theory and Practice (Ashgate Publishing Limited, Aldershot, 2007) at 81, for a discussion of New Urbanism’s promotion of mixed-use communities as vibrant and pedestrian-friendly models of urban development. 27
A map based on 2012 data showing income levels in Houston census tracts (darker colours mean higher incomes). Poorer households are clearly concentrated in the centre-east of the city, while richer households are concentrated in the west, and in the suburban hinterland. Source: http://www.businessinsider.com.au/10-stark-maps-of-income-segregation-in-america-2013-12
Houston’s system of land use control involving both City regulation and private deed covenants has exacerbated and entrenched segregation between the wealthy and the poor in the city. A 2012 study has shown that Houston has the highest rate of residential segregation of lower-income and upper- income households of America’s ten largest metropolitan areas.153 The authors found that 37 percent of lower-income households in Houston as whole were situated in census tract areas where the majority of households were lower-income, while 24 percent of upper-income households were sited in census tract areas where the majority of households were upper-income.154 In Houston, the general pattern of segregation has been one of older inner suburbs populated with the city’s poorer citizens, while the wealthy inhabit the newer, more spacious developments on the urban fringe.155 Without
153 Richard Fry and Paul Taylor The Rise of Residential Segregation by Income (Pew Research Center, Washington, D.C., 2012) at 4. 154 At 2-3. Low-income households were those having less than two thirds of the national median income, while upper-income households were those with more than double the national median income. 155 Mike Tolson “Segregation by income in Houston is among the starkest in U.S Houston” (August 1st, 2012) Houston Chronicle online
undertaking a detailed analysis, the study noted that “[a]mong the factors that may play a role are historical settlement patterns; local housing policies, zoning laws, real estate practices and migration trends”.156
Many academics and other commentators have long argued for a link between land use control, specifically zoning, and urban social segregation. While the statistics on residential segregation cannot be attributed solely to land-use controls, there is a substantial amount of critical thought that demonstrates links between the two. Critics have pointed out the exclusionary nature of zoning: the exclusion of low and moderate income housing is “[zoning’s] purpose and intent”.157 In the early years of the twentieth century zoning was devised as a tool to maintain racial segregation in many American cities; many had explicitly race-based zoning codes.158 Since then, zoning has been used primarily as a means of maintaining segregation by income, although this itself is often de facto racial segregation due to the correlation between race and income in the United States.159 The residential segregation study notes that racial segregation in housing is still more prevalent in the United States than income segregation,160 however, more detailed analysis of census data or a sociological study would be needed to investigate the particular situation in Houston.
It is important to note at this point that the criticisms of zoning’s exclusionary effects can be applied equally to other forms of land-use control, including non-zoning City ordinances, and private deed covenants. In a comparative study of non-zoned Houston and its zoned neighbour Dallas, one academic found that:161
“No significant differences in residential segregation are evident between the two cities. These results suggest that, absent zoning, private voluntary institutions produce nearly identical patterns of residential segregation.”
While that study perhaps overlooks the role that public regulation has in producing this segregation alongside private institutions in Houston, the study suggests that zoning and other forms of land-use regulation are equally effective in producing segregation. Some commentators specifically address the effects of non-zoning land-use controls on residential segregation: Talen, for example, notes that restrictive covenants attached to subdivisions had “contributed to social exclusion” (for the reasons discussed below).162 Many, however, criticise the effects of zoning in particular. Based on Berry’s
156 At 3. 157 Siegan, above n 96, at 88. 158 Marsha Ritzdorf “Locked Out of Paradise: Contemporary Exclusionary Zoning, the Supreme Court, and African Americans, 1970 to the Present” in June Manning Thomas and Marsha Ritzdorf (eds) Urban Planning and the African American Community: In the Shadows (Sage Publications, Thousand Oaks, CA, 1997) 43 at 43. Explicit racial zoning came to an end with the Supreme Court’s 1917 decision in Buchanan v Warley. 159 Berry, above n 103, at 253. 160 Fry and Taylor, above n 153, at 14. 161 Berry at 251. 162 Talen, above n 50, at 96. 29
finding that the two have almost identical results with regard to segregation, the criticisms of zoning are therefore largely applicable to other measures of land-use regulation too.
Zoning is said to seek to achieve social exclusion in two ways: by restricting the ways in which certain land may be used (i.e. restricting land to single-family residential, multi-family residential, commercial or industrial use), and by restricting the people who may live in an area (generally by raising house prices and so excluding those without the money to buy into the area).163 In Houston, the same can be said about deed restrictions and City planning ordinances.164 Deed restrictions and the above-mentioned City ordinances that mandate minimum lot size and width, floor area, height limitations and setback requirements are all examples of the second type of restriction. They all contribute to raising the minimum cost of buying a property and/or building a house on it, thus “limiting the numbers of eligible buyers”.165 Siegan discusses this relationship in relation to the provisions often found in zoning ordinances (and also in many Houston deed restrictions):166
“… height limitations may exclude high rises, and coverage and setback requirements may exclude inexpensive townhouses and duplexes. Large-lot or minimum floor-area standards may exclude average- and lower-priced homes, and specified bedroom counts may exclude three-bedroom apartments in some areas and efficiency and one-bedroom apartments in others.”
Several of these requirements are part of Houston’s Code of Ordinances, and many are mandated by private deed restrictions.167
At the same time, deed restrictions may limit the type of housing that can be built in a particular area, ruling out cheaper townhouse and apartment structures that are more affordable to low-income earners.168 Thus the exclusion of multi-family housing structures has become a predominant feature of suburban American life through instruments such as deed restrictions.169 This facilitates social segregation firstly by segregating homeowners from renters, thus segregating by income, and so, to some extent, segregating by race as well.170
Accompanying residential segregation is the relative inability of poorer neighbourhoods to regulate land use within their boundaries. The privatisation of land use regulation has had the negative effect
163 Siegan, at 88, and Berry, at 252, both discuss this distinction. 164 See Berry, above n 103, on this point. He does not, however, discuss City ordinances in relation to residential segregation, instead focusing on the parallels between segregation under public measures (zoning) and private measures (deed covenants). Houston City ordinances are to a large extent similar to many zoning ordinances, except for their failure to mandate land-use separation. 165 Siegan, at 88 and Berry at 252-253. 166 At 88. 167 Qian, above n 2, notes at 227 that many of these requirements, among others, are included in some Houston deed covenants. 168 Siegan, at 89. 169 At 89. 170 Berry at 267. 30
of leaving poorer neighbourhoods more vulnerable to ill-fitting mixed-use development. The enforcement of deed restrictions is directly related to both an area’s household income and home- ownership rates: the higher these are, the more likely that covenants are implemented.171 This is probably due to the money it takes to take a suit over covenant violations to court, and perhaps due to minority and disadvantaged groups’ lack of influence over city government, which may in practice be required to get the City Attorney to take a suit on their behalf.172 Furthermore, as deed restrictions are primarily devised for new subdivisions, many older inner-city neighbourhoods, with generally poorer populations, lack these covenants. In such cases, the creation of new covenants in an area require the consent of all property owners, which is often not able to be achieved.173
So, whether as a result of less enforcement of covenants, or a lack of covenants to begin with, in poorer areas there has been a proliferation of generally negative mixed-use development, such as landfills, incinerators and solid waste sites.174 One study has cited statistics showing that “the greater the proportion of African American people in a community in the southeastern United States, the more likely that community is to be situated near a hazardous waste site.”175 That is not to say that mixed-use development in poor or rich neighbourhoods is negative – indeed, mixed-use development is generally thought to be a positive goal for urban form. However the pattern of deed restriction enforcement means that its negative effects harm the poor to a greater extent than other groups. The low rates of covenant enforcement in poor areas may even encourage developers to build unsuitable commercial or industrial developments there, because they know that it is unlikely that a suit will be brought against them.176 Qian eloquently summarises the nature of this problem in Houston:177
“As subdivisions have grown older and as deed restrictions expire, other uses have encroached upon them, resulting in a change in land use character. For instance, heavy commercial and industrial uses exist alongside single family residences; small bungalows are adjacent to commercial, industrial and vacant land … In many cases residential uses are directly adjacent to heavy industries, toxic sites, and landfills. Such land development strategies might satisfy pro-growth ideology, but they fail to alleviate the living circumstances of the poor, and transfer the costs generated from growth to them.”
Houston’s lack of zoning allows the possibility for positive mixed-use development, and for the city to escape the rise of monotonous single-use suburbia. However, a mixture of heavy land-use controls
171 Qian, at 230. 172 Fisher, above n 5, at 150. 173 Berry at 263. 174 Fisher, above n 5, at 150. 175 Robert Collin and Robin Collin “Urban Environmentalism and Race” in June Manning Thomas and Marsha Ritzdorf (eds) Urban Planning and the African American Community: In the Shadows (Sage Publications, Thousand Oaks, CA, 1997) 220 at 221. 176 Qian, above n 2, at 233. 177 At 233. 31
in more wealthy suburbs, and lax enforcement in poor suburbs means that this possibility has failed to be realised.
32
Conclusion
Houston’s unique system of land-use regulation combines City ordinances with the predominant system of private deed restrictions. These twin types of regulation have contributed in various ways to low-density urban form, automobile dependence, and social segregation. Houston’s City Code mandates a land-use pattern that maintains a relatively low population density throughout the city. The reduction in minimum lot size within the City boundaries has allowed for the construction of townhouses and low-rise apartments, which has contributed to a greater inner-city population density. However, most development has occurred on the city fringes in the City’s extraterritorial jurisdiction, where a minimum lot-size of 5000 square feet persists. Other city ordinances that contribute to low- density settlement include setback requirement, minimum road widths and generous minimum parking requirements.
But Houston’s city ordinances, while favouring low-density development, are not particularly extreme in their substance. Instead, it is private deed restrictions that have had the greatest impact on Houston’s population density, by allowing groups of residents or subdivision developers to require minimum lot sizes in a subdivision or neighbourhood that are greater than those prescribed by law. The provision for special minimum lot sizes in the City Code has a similar effect by allowing minimum lot sizes to be set according to the lot sizes of other properties in the area, as long as this is above the statutory minimum. In both cases, larger minimum lot sizes, when coupled with coverage requirements, mean that, insofar as land is to be used for residential habitation, single-family homes are often the only viable structures to build. Furthermore, deed restrictions often bar anything other than single-family residential development, thus creating in many places monocultural single-use residential zones.
Both public and private regulation tend towards low-density development. The city’s strongly libertarian and non-interventionist political culture complement this aim by promoting a transport network that favours private automobile use at the expense of public transit, which generally requires relatively high population and employment density to be effective. The transportation planning budget of the Houston-Galveston Area Council, the body in charge of transportation projects in the region, clearly favours road-building over the creation of more public transit infrastructure. A regulatory framework that promotes low-density development implicitly promotes automobile use as well: in this respect Houston is merely one example of the United States-wide phenomenon of the “Auto City”. While the absence of use zoning in Houston might be thought to contribute to less dependence on automobiles, due to the theoretically closer proximity of residential pockets to commercial and retail areas, this has not been the case. Deed restrictions which prohibit commercial land-use in residential 33
areas has in effect created a state of single-use zoning in much of Houston. Thus, citizens generally still have to drive to access shops and employment centres.
Finally, it is clear that Houston’s policy of forbearing from zoning for land-use, and leaving any land- use regulation up to individuals has not enabled the city to avoid the same problem of social segregation that many blame on traditional single-use zoning policies. Deed restrictions, and to a lesser extent city ordinances, have the effect of raising the cost of buying or constructing a home in the area covered by the deed or ordinance. This creates segregation by income: only the wealthy can afford to move into some areas, while poorer residents are grouped together in areas of low-cost housing. Due to correlations between income and race, segregation by wealth often entails a degree of segregation by race. This segregation is exacerbated by the greater rate of implementation of deed restrictions in wealthier areas than in poorer areas. The costs associated with enforcing deed restrictions, and perhaps the perception that the city government is less concerned with the interests of poor residents means deed restrictions in poor areas often go unenforced. This is turn paves the way for undesirable mixed-use development in these areas. This is illustrative of the way in which leaving enforcement to private individuals rather than a local authority actively enforcing planning standards can lead to the marginalisation of a city’s poorer citizens.
So what can be done to ameliorate Houston’s problems, especially as it looks set to continue expanding in size and population? This is not a paper about urban design, so much of the debate about the best way to manage city growth falls outside its scope. In brief, it is clear that sustained centrifugal growth on the urban periphery at the same low-density as is currently mandated, will only increase the problems discussed above. One strategy in particular that may be of use to city planners in Houston is that prescribed by the urban design movement known, at least in the United States, as Smart Growth. While Smart Growth is not in fact as coherent a movement as its snappy label would suggest, it nevertheless encompasses several common policies towards urban design. Smart Growth posits that the best sort of urban development is the creation and fostering of neighbourhoods that are “compact, walkable, diverse, and connected”.178 It is opposed to current patterns of urban sprawl which have turned America’s cities into a “collection of far-flung monocultures, connected only by the prosthetic device of the automobile”.179 The movement advocates high-density infill development,180 the promotion of mixed-use neighbourhoods,181 and the coordination of land use regulation and transportation planning – particularly with regard to public transit.182 Such policies are intended to
178 Andres Duany, Jeff Speck, Mike Lydon The Smart Growth Manual (2010 McGraw Hill, New York) at [1.5]. 179 At xv-xvi. 180 At [1.6], [5.10]. 181 At [5.1]. 182 At [3.1], [6.6]. 34
reduce automobile dependence and promote pedestrianism in cities, while discouraging the spread of low-density single-use settlement.183
Such change in Houston would require both more proactive management by the City government, and a broader shift in the ideology underpinning Houston’s culture of growth and sprawl. The laissez-faire attitude that leaves much land-use regulation in the hands of private citizens would have to give way to a stronger governmental emphasis on regulating Houston’s urban form. Despite the slow pace generally required for such attitude shifts to occur, there is evidence that a growing number of Houston residents would support such a shift. A 2013 survey of Houston residents showed that a majority would prefer to live in more urbanised areas, in smaller houses, where walking – rather than driving – was more of a possibility.184 The Houston City government must listen to its citizens, and ensure that it does not allow the city’s urban form to continue to perpetuate problems such as automobile dependence and social segregation. While it may not be a swift turn, the direction of this archetypal Auto-City must surely change if these problems are to be dealt with.
183 At xvi, [3.11], [5.1]. 184 Kinder Institute for Urban Research “The 32nd Kinder Institute Houston Area Survey” (Rice University, Houston, 2013) at 6. 35
Bibliography
1. Legislation
Code of Ordinances, City of Houston, Texas.
Texas Local Government Code.
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Christopher Berry “Land Use Regulation and Residential Segregation: Does Zoning Matter?” (2001) 3 American Law and Economic Review 251.
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Robert Collin and Robin Collin “Urban Environmentalism and Race” in June Manning Thomas and Marsha Ritzdorf (eds) Urban Planning and the African American Community: In the Shadows (Sage Publications, Thousand Oaks, CA, 1997) 220. 36
John Dorsett “Downtowns, Cars, and Parking” in Roger Kemp (ed) Cities and Cars: A Handbook of Best Practices (McFarland & Company, Jefferson, North Carolina, 2007) 15.
Joe Feagin “The Social Costs of Houston’s Growth” (1985) 9 International Journal of Urban and Regional Research 164.
John Fernandez “Boulder Redesigns Residential Streets to Focus on People Rather than Cars” in Roger Kemp (ed) Cities and Cars: A Handbook of Best Practices (McFarland & Company, Jefferson, North Carolina, 2007) 65.
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Michael Lewyn “How Overregulation Creates Sprawl (Even in a City without Zoning)” (2004) 50 Wayne L Rev 1171.
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Zhu Qian “Planning a ‘World Class’ City without Zoning: the experience of Houston” in M Jenks, D Kozak and P Takkanon World Cities and Urban Form: Fragmented, Polycentric, Sustainable? (Routledge, Abingdon, 2008) 219.
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4. Reports and Papers
Richard Fry and Paul Taylor The Rise of Residential Segregation by Income (Pew Research Center, Washington, D.C., 2012).
Houston-Galveston Area Council “Houston-Galveston Area Council Transportation Improvement Program 2011-2014”
5. Internet Materials
Dug Begley “Boom in road construction continues into next year” (December 23 2013) Houston Chronicle online
Dug Begley “Record U.S. transit ridership not matched in Houston” (March 10 2014) Houston Chronicle online
City of Houston “About City Government”
City of Houston “Facts and Figures”
City of Houston “Learn How You Can Protect the Character of Your Neighborhood” (2014)
City of Houston “Minimum Lot Size Approvals” (2012)
Jennifer Friedberg “New lot size, building line ordinances lift Heights residents” (3 April 2007) Houston Chronicle Online
Michael Skelly and Jeff Kaplan “Let businesses decide parking” (March 4 2013) Houston Chronicle online
Mike Tolson “Segregation by income in Houston is among the starkest in U.S Houston” (August 1st, 2012) Houston Chronicle online
United States Census Bureau “Community Facts: Houston city, Texas” (2010)
United States Census Bureau “CPH-T-5. Population Change for Metropolitan and Micropolitan Statistical Areas in the United States and Puerto Rico (February 2013 Delineations): 2000 to 2010” (March 2013)
US Census Bureau “State and County QuickFacts” (2014)
Lucas Wall “Event urges commuters to try 2-wheelers” (17 May 2003) Houston Chronicle online