Powell v. City of Hous.

• Decision Date: 04 June 2021
• Docket Number: No. 19-0689,19-0689
• Citation: 628 S.W.3d 838
• Parties: Kathleen POWELL & Paul Luccia, Petitioners, v. CITY OF HOUSTON, Texas, Respondent
• Court: Texas Supreme Court

628 S.W.3d 838

Kathleen POWELL & Paul Luccia, Petitioners,

v.CITY OF HOUSTON, Texas, Respondent

No. 19-0689

Supreme Court of Texas.

Argued January 5, 2021

Opinion delivered: June 4, 2021

Sara C. Bronin, for Amici Curiae Foster, Sheila, The National Trust for Historic Preservation in the United States, Greater Houston Preservation Alliance, Inc., dba Preservation Houston, The Astrodome Conservancy, Davidson, Nestor M., Zale, Kellen, Rowberry, Ryan M., Byrne, J. Peter, The San Antonio Conservation Society, Alexander, Lisa T., Preservation Texas, Inc., The National Alliance of Preservation Commissions, Fox, Sarah, The Trost Society, Preservation Action, Preservation Dallas, Historic Fort Worth Inc., Bronin, Sara, Preservation Austin.

Matthew Joseph Festa, for Petitioners Paul Luccia, Kathleen Powell.

Mikael Garcia, for Amicus Curiae Texas Freedom Caucus.

Arif Panju, Austin, for Amicus Curiae Institute for Justice.

Brian Anthony Amis, Collyn A. Peddie, for Respondent.

Cooke Kelsey, Houston, for Amicus Curiae Scenic Organizations.

Jeffrey C. Mateer, Austin, Bethany Spare, Warren Kenneth Paxton, Austin, Lanora Pettit, Ryan Lee Bangert, Kyle D. Hawkins, for Amicus Curiae State of Texas.

Chance Dean Weldon, Austin, Shelby Sterling, Robert Earl Henneke, Kerrville, for Amicus Curiae Texas Public Policy Foundation.

Justice Busby delivered the opinion of the Court, in which Chief Justice Hecht, Justice Guzman, Justice Lehrmann, and Justice Boyd joined, and in which Justice Devine, Justice Blacklock, Justice Bland, and Justice Huddle joined as to Part II.

This suit for declaratory judgment concerns whether the City of Houston's Historic Preservation Ordinance is a zoning ordinance enacted in violation of Houston's City Charter or Chapter 211 of the Texas Local Government Code. We conclude that the ordinance does not implement zoning as that concept is ordinarily understood, and therefore the City Charter's limits on zoning do not apply. But Chapter 211 of the Local Government Code does apply to the ordinance, and it provides that city regulation of structures in historically significant areas must meet several requirements. At trial, the plaintiffs failed to prove that the ordinance violates certain of Chapter 211's requirements. Because the record in this case does not show that the City ran afoul of either its Charter or the provisions of Chapter 211 at issue here, we affirm the judgment in favor of the City.

BACKGROUND

The City of Houston is a home-rule city, and its Charter prohibits zoning unless adopted through a binding referendum. HOUSTON , TEX. , CHARTER , art. VII-b, § 13. The Houston City Council adopted the Historic Preservation Ordinance in 1995 without a referendum. The original Ordinance allowed the City to establish historic districts and required owners of properties in those districts to seek approval from the Houston Archaeological and Historical Commission before modifying or developing their property. Property owners sought this approval by applying for a certificate of appropriateness from the Commission. If the Commission denied the application, property owners could wait 90 days and obtain a waiver certificate that allowed them to make the proposed changes to the property.

In 2010, the City placed a moratorium on the waiver certificates and ultimately ended the practice altogether by amending the Ordinance. That same year, the City implemented a procedure for reconsidering a neighborhood's designation as a historic district. This process was triggered for the Heights East District, originally designated as a historic district in 2008, when the required number of residents and homeowners moved for reconsideration. The reconsideration effort was unsuccessful, and the City continued to apply the Ordinance to Heights East.

Kathleen Powell and Paul Luccia ("the Homeowners") each own property in Heights East. They brought this suit seeking a declaratory judgment that the Ordinance is void and unenforceable because it violates the City Charter's limits on zoning and it does not comply with certain provisions of Chapter 211 of the Local Government Code. The trial court denied the Homeowners' requests for declaratory relief after a bench trial on stipulated facts, and it rendered judgment for the City.¹

The Homeowners appealed, urging that the Ordinance is a zoning regulation. 580 S.W.3d 391, 401 (Tex. App.—Houston [1st Dist.] 2019). As the parties framed the issues, the Ordinance's validity turned on whether it implements zoning: if not, the City Charter's zoning limitations do not apply, and the City is not required to comply with the Local Government Code's procedural and substantive requirements for regulating buildings in historical areas. Id. The court of appeals held that the Ordinance is not a zoning regulation because the purposes for which it was created, its function, and its way of regulating property use and development all differ from those of zoning laws. Id.

The court pointed out that the Ordinance was intended to recognize, protect, and improve landmarks and areas of historical and architectural significance. Id. at 401–02. In contrast, Chapter 211 of the Local Government Code and this Court indicate that zoning regulations are used for community planning. Id. at 401 (citing TEX. LOC. GOV'T CODE § 211.004 ; City of Brookside Village v. Comeau , 633 S.W.2d 790, 792 (Tex. 1982) ). The court of appeals also noted that the Ordinance does not divide the City into geographically based zoning districts, classify buildings within zones, or provide uniform regulations as contemplated by Local Government Code section 211.005. Id. at 403. Instead, it individually regulates the outer appearance of homes on a case-by-case basis. Id.

After surveying cases interpreting the concept of zoning, the court of appeals concluded that it is "a tool of community planning exercised in a more comprehensive plan than that provided by the [Ordinance's] protections for the historic character of a few small sections of the City."² The Ordinance lacked some of the key features of zoning regulation, the court reasoned, and therefore it did not violate the limits on zoning in the City Charter or Chapter 211. Id. at 407. The Homeowners sought review in this Court, which we granted.

STANDARD OF REVIEW

We construe municipal ordinances the same way we construe statutes. Bd. of Adjustment of City of San Antonio v. Wende , 92 S.W.3d 424, 430 (Tex. 2002). Their construction is thus a question of law that we review de novo. City of Rockwall v. Hughes , 246 S.W.3d 621, 625 (Tex. 2008). City ordinances are "presumed to be valid," and courts "have no authority to interfere unless the ordinance is unreasonable and arbitrary—a clear abuse of discretion." Comeau , 633 S.W.2d at 792 (quoting Hunt v. City of San Antonio , 462 S.W.2d 536, 539 (Tex. 1971) ). It is the burden of the challenging party to demonstrate clearly that the ordinance is unreasonable and arbitrary. City of San Antonio v. Pigeonhole Parking of Tex. Inc. , 158 Tex. 318, 311 S.W.2d 218, 223 (1958) ; see also City of Pharr v. Tippitt , 616 S.W.2d 173, 176 (Tex. 1981) (noting that this burden is a heavy one).

ANALYSIS

As a home-rule city, Houston derives its authority from the Texas Constitution and the City Charter adopted by its voters. See TEX. CONST. art. XI, § 5. Houston's Charter generally confers on the City all powers granted to municipalities by the Constitution. HOUSTON , TEX. , CHARTER , art. II, § 2.

Home-rule cities may exercise all powers not denied to them by the Constitution or state law. See TEX. CONST. art. XI, § 5 ; City of Laredo v. Laredo Merchs. Ass'n , 550 S.W.3d 586, 592 (Tex. 2018). These inherent powers include, for example, the authority to adopt and enforce building codes, Town of Lakewood Vill. v. Bizios , 493 S.W.3d 527, 531 (Tex. 2016), and in the case of both general-law and home-rule cities, the authority to regulate land use. Comeau , 633 S.W.2d at 793 n.4.

At every stage of this case, including in this Court, the Homeowners have taken the position that regulation of land use for historic preservation purposes is a valid exercise of the police power, and their requests for declaratory relief concern whether the City Charter or Chapter 211 of the Local Government Code limit the City's power. Several amici disagree with the former position, contending that historic preservation is not within the police powers conferred on municipalities by Article XI section 5 of the Constitution —commonly known as the home-rule amendment.³

Because no party has presented the issue raised by amici, it does not provide grounds for reversal. Our adversary system of justice "depends on the parties to frame the issues for decision and assign[s] to courts the role of neutral arbiter of matters the parties present." Pike v. Tex. EMC Mgmt., LLC , 610 S.W.3d 763, 782 (Tex. 2020) (quoting Greenlaw v. United States , 554 U.S. 237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ). We do not seek out issues but "wait for the cases to come to us, and when they do we normally decide only questions presented by the parties." In re Abbott , 601 S.W.3d 802, 809–10 (Tex. 2020) (quoting Greenlaw , 554 U.S. at 244, 128 S.Ct. 2559 ).

In any event, addressing the issue identified by amici is not necessary to resolve this case. As explained below, we conclude that Chapter 211 of the Local Government Code applies, and it provides that "[t]he governing body of a municipality may regulate" changes to "buildings and other structures" in "areas of historical ... significance." TEX. LOC. GOV'T CODE § 211.003(b). Amici do not challenge this legislative authorization.⁴

We therefore proceed to address the issues raised by the parties: whether the Ordinance complies with the City Charter and Chapter 211. We consider each in turn.

I. The Ordinance does not zone property in violation of the City Charter.

The Houston City Charter does not prohibit the City from zoning altogether, but it limits the City's power...