Understanding Texas Zoning and Land Use Laws

Zoning and Land Use

Zoning and land use are critical factors that property owners and those seeking to buy property must consider. Property owners do not have an unlimited right to enjoy and use their property as they please. For nearly 100 years, zoning has been considered an inherent power that a municipality has to regulate property within its borders.

Zoning Is a Legal Exercise of Police Power

The Texas Supreme Court has endorsed the use of zoning laws throughout the state. In Lombardo v. City of Dallas, the Court in 1934 spoke of the authority of the city to restrict buildings within certain districts.

In Texas, zoning law has several statutory purposes, including:

  • To protect the public health, safety, morals, or general welfare
  • To protect places and areas of historical, cultural, or architectural importance and significance

Nearly every city has some type of zoning ordinance. Zoning is one type of land use law but it is not the only restriction the government may put on property. Zoning is considered to be a part of the government’s police power to promote the “health, safety, morals, or the general welfare of the community.” Interestingly, Houston is one of the few cities in the country that lacks zoning laws.

While zoning is part of the police power, the authority to pass ordinances in Texas comes from state law. The Texas Zoning Enabling Act is what allows cities to zone and control their activities. Curiously, the law does not define the term “zoning.”

Cities Must Follow Strict Rules with Zoning Regulations

Municipalities are allowed to divide their land into different zoning districts. Each district will have its own specific rules that must be uniform for each building in the district.

Zoning ordinances are passed at the municipal level. These municipalities do not have an unlimited right to do as they please. Even though cities have the power to pass zoning laws, they must comply with the following procedural protections:

  • Cities must strictly follow laws and procedures when passing a zoning law, including holding an open hearing that is announced in advance.
  • A regulation may not be arbitrary, unreasonable, or capricious, and it must have a real and substantial relationship to the objective that it is intended to achieve.
  • If zoning laws amount to an inverse condemnation of the owner’s property, that owner must be financially compensated for it as a taking.

What Municipalities Can Regulate Through Zoning Laws

Some of the aspects of buildings municipalities can legally regulate through zoning laws include:

  • Height
  • Size
  • Floors
  • Use
  • Location

Some common zoning restrictions property owners face include:

  • Restrictions on the construction of apartment buildings
  • Designations of areas as historical districts
  • Limitations on subdividing lots

Zoning laws can depress a property’s value. Potential buyers and tenants should understand the zoning restrictions on a particular property before they agree to buy it or lease it.

Zoning Laws Must Follow a Plan and a Process

Cities must enact zoning regulations according to a comprehensive overall written plan. In other words, zoning regulations must have a specific purpose. Cities will have different zoning districts within their borders that have varying rules for the buildings and lots within them. Whether a city exercises its zoning power through a zoning commission or through its city council depends on whether it is a home rule city or a general law city. The latter does not need a special zoning commission and can pass laws through its city council.

When a city wants to pass a zoning law, it must follow a set process. The zoning commission is required to work in the public view. It must conduct a public hearing to discuss the proposed regulation of a particular property or properties, and allow people to have their say and be considered. Before the hearing, the zoning commission must give notice to the owners of property within 200 feet of the property or properties in question. If a certain number of property owners protest a zoning regulation change, it can only be approved by a supermajority vote.

One of the key issues in zoning law is enforcement. Zoning laws can be criminal in nature, and those who violate them can be charged with a misdemeanor. Courts have the legal ability to fine and/or imprison those who violate zoning laws. Judges can issue an injunction to stop any zoning law violation.

Cities Have Zoning Power, But It Is Not Unlimited

That said, a city’s zoning power is not absolute. Those who are affected by zoning decisions have the right to be heard. Specifically, municipalities may have a Zoning Board of Adjustment (ZBA) to hear appeals from interpretations of zoning regulations. They may also grant special exceptions and variances to the rules.

If the property owner or the city does not agree with a ZBA decision, they have the right to appeal it to a trial court. A court will review the ZBA’s decision, but will only reverse it if a judge finds there was an abuse of discretion. Historically, Texas courts have given significant deference to local zoning laws. It is often difficult for litigants to challenge the validity of zoning laws, and the Texas Supreme Court has specifically stated that someone challenging a zoning law bears an “extraordinary burden.” However, it is possible to overturn an adverse zoning decision or law.

Other Restrictions on Building and Uses of Property

Texas has other laws that restrict property development beyond zoning ordinances. One such state law is the “Regulation of Land Use, Structures, Businesses and Related Activities.” These laws can be used to limit development to an extent, although the Texas Legislature passed a law that limits some moratoria on residential construction.

While zoning is the most common type of land use control, the government has other methods by which it can restrict how land is used. Local governments can:

  • Approve or disapprove a subdivision plat
  • Grant or deny a building or occupancy permit
  • Impose an impact fee or easement dedication requirement

In addition, property owners may be required to get environmental approvals before certain uses of their property. If the project is using any federal funds, the builder must comply with the National Environmental Policy Act.

Zoning issues will have a large effect on both the usage of the property and its value. A prospective buyer or  tenant should review how these laws potentially impact a property before completing a transaction regarding that property and committing money to it. A party should not expect to obtain a special exception or a variance from zoning restrictions. If it does, it may be sorely disappointed when its request is denied.

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