Zooming on Zoning? Citizens Can Home in on City Hall, Literally and Figuratively
I have lived in Houston, Texas for a long time but the one thing that still bothers this Yankee transplant is the lack of zoning. Even my gated pocket of urban single-family homes is right next to a large apartment complex on one side and warehouses on the other. Granted, I live in the city, but Houston is one of the largest cities in the country where land-use and development is managed largely by deed restrictions rather than true zoning, and arguably (at least in my opinion) a master plan, or urban planning.
Cities in Texas may only zone by creation of either a Zoning Commission, Planning Commission or Planning & Zoning Commission. The Texas Local Government Code Chapter 211, Municipal Zoning Authority, provides the statutory authority for cities to zone property in the city but this cannot be accomplished unless a Commission is appointed. Section 211.007 states home-rule cities in Texas must appoint a zoning commission, and general law cities may appoint one. If a general law city does not appoint, then the city council of a general-law city can serve as the zoning commission. If a city has a municipal planning commission at the time of implementation of creating zoning, city council may appoint that commission to serve as the zoning commission. For more on home-rule and general-law cities, see our blogs here and here.
So, what is zoning? And why does a city zone? Zoning is municipal regulation dividing a city into zoning districts and creating regulations for those districts. According to our Legislature that wrote the Local Government Code, the purpose of zoning is to promote public health, safety, morals, or general welfare and to protect and preserve places and areas of historical, cultural, or architectural importance and significance. Tex. Loc. Gov’t Code §211.001. The Local Government Code also requires that any zoning must be adopted in accordance with the City’s Comprehensive Plan. A comprehensive plan is in essence the city’s vision for future land use, ideally how a city wants to grow and develop.
In basic terms, and by way of generalization, no one wants certain types of businesses (bars, X-rated movie theater, certain manufacturing facilities, fast food restaurant) next to their elementary school or even their place of worship. Similarly, most people buying property, whether commercial or residential, have multiple concerns about what activities are restricted in that location when investing money. A comprehensive plan sets forth the general plan for a city or its land-use plan, and it contains long-range goals and municipal objectives.
In Texas, however, that control is not strictly dictated by the municipality or “city hall.” The saying you can’t fight city hall rings true with most of us, but elected officials run city hall in conjunction with municipal employees, and the elected officials appoint members of the zoning or planning & zoning commission. Elected officials are residents of the municipality as are the commission members. Any municipal action regarding creating zoning districts, changing zoning districts or land development occurs only after public meetings and public hearings. All of this is set forth in the Texas Local Government Code and Texas Government Code. Public Meetings and Public Hearings require notice on city websites, in newspapers of general circulation, by mail, and by the physical posting of paper notices. The statutory scheme is meant to encourage public participation.
Now, more than ever, public participation is easy; in fact, it can take place at home on your couch and even in your pajamas. Due to the Covid-19 pandemic, many cities have discovered the ease, utility, and transparency of broadcasting meetings on the internet and using programs such as Zoom to allow remote public participation. This electronic form of public participation is likely a permanent development, so put on your comfy sweatpants or pj’s, sit down, connect, participate, speak up, and, oh yes, try to fight city hall!
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.
