Amicus Brief of Historic Preservation Organizations and Legal Scholars in Support of the City of Houston, No. 19-0689 (Tex.)

Bronin, Sara C. Amicus Brief of Historic Preservation Organizations and Law Scholars in Powell v. City of Houston, No. 19-0689 (Aug. 6, 2020) (Tex.)

49 Pages Posted: 24 Sep 2020 Last revised: 1 Jun 2021

See all articles by Sara C. Bronin

Sara C. Bronin

Cornell University - College of Architecture, Art & Planning; Cornell Law School

J. Peter Byrne

Georgetown University Law Center

Lisa T. Alexander

Texas A&M University School of Law

Nestor M. Davidson

Fordham University School of Law

Sheila Foster

Georgetown University; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Sarah Fox

Northern Illinois University - College of Law

Ryan Rowberry

Georgia State University - College of Law

Kellen Zale

University of Houston Law Center

Date Written: 2020

Abstract

This brief to the Texas Supreme Court was filed by the Amici Curiae, including local, state, and national preservation organizations and legal scholars, to inform the court about background legal principles regarding zoning and historic preservation law. The Amici lay out reasons why the Historic Preservation Ordinance (the “HPO”) adopted by the City of Houston (the “City”) is a straightforward, valid exercise of municipal powers pursuant to Texas law and any rational interpretation of longstanding principles of land use regulation. The Amici Curiae focus on three issues, based on their expertise and their deep knowledge of the law, policy, and practice of historic preservation and zoning.

First, the Amici Curiae show the important distinctions between historic preservation and zoning law. These areas of law can be distinguished from each other in several ways. Zoning and historic preservation law emerged for different reasons, at different times. They regulate different activities: zoning law necessarily regulates uses, as well as the general bulk and placement of buildings, while historic preservation law regulates architectural appearance and the character-defining features of historic properties. And historic preservation law only regulates properties designated as historic (individually or within a designated historic district) – which is not the case with zoning, which regulates all properties within a jurisdiction, whether historic or not.

Second, the Amici Curiae explain how historic places can be regulated by zoning law, historic preservation law, both, or neither. The fact that a place, like the Houston Heights Historic District East at issue in this case, is regulated by historic preservation law has no bearing on whether that place is also subject to zoning law. The petitioners’ illogical argument that regulation by historic preservation law is necessarily regulation by zoning law has never been adopted by any other court.

Third, the Amici Curiae show that the HPO is not zoning, let alone spot zoning. Analyzing the HPO in light of the differences between historic preservation law and zoning law, it is very clear that the HPO is not zoning, nor it is spot zoning resulting from unreasonable or irrational singling out of individual owners, as the State of Texas argues in its Amicus Curiae brief.

Keywords: Zoning, Land Use, Historic Preservation, Houston, Planning, Property Rights, Referendum

Suggested Citation

Bronin, Sara C. and Byrne, J. Peter and Alexander, Lisa T. and Davidson, Nestor M. and Foster, Sheila and Fox, Sarah and Rowberry, Ryan Max and Zale, Kellen, Amicus Brief of Historic Preservation Organizations and Legal Scholars in Support of the City of Houston, No. 19-0689 (Tex.) (2020). Bronin, Sara C. Amicus Brief of Historic Preservation Organizations and Law Scholars in Powell v. City of Houston, No. 19-0689 (Aug. 6, 2020) (Tex.) , Available at SSRN: https://ssrn.com/abstract=3670947

Sara C. Bronin (Contact Author)

Cornell University - College of Architecture, Art & Planning ( email )

Ithaca, NY
United States

Cornell Law School ( email )

J. Peter Byrne

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
(202)662-9066 (Phone)

Lisa T. Alexander

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

Nestor M. Davidson

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Sheila Foster

Georgetown University ( email )

Washington, DC 20001
United States

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Sarah Fox

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Ryan Max Rowberry

Georgia State University - College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

Kellen Zale

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
51
Abstract Views
501
rank
464,690
PlumX Metrics