Progressivism Comes to Houston; J. Brian Philips

72 ProgressivisUlCOUles to Houston by J.Brian Phillips D uring the Progressive Era of the early 20th century the nation's first zoning ordi nances began to appear. Public control of private property was a popular cause at the time, and land-use restrictions were frequently used to achieve this end. During the Progressive Era, and in the years since, only one major American city did not enact some form of zoning. That city is Houston. While other cities have imposed severe restric tions on property use-through zoning, strict building codes, rent control, and so on-Houston has generally respected property rights. This, how ever, is changing, as a growing number of restric tions are imposed on private property. As the 20th century comes to a close, Houston is entering its own Progressive Era. The ZoningIssuein Houston Zoning is not a new issue in Houston. No less than four times in this century, some form of zon ing has been proposed for the city.

In 1912, at the height of Progressivism, a land scape architect from Massachusetts was hired to develop a zoning plan for Houston. This plan was largely ignored until 1922, when the city estab lished its first planning commission. In 1929a zon ing plan was formally presented to the City Coun cil, but real estate interests opposed the plan. In 1936, several city leaders suggested that the plan of 1929be implemented. Over the next seven years, neighborhood meetings were used to gain support for the proposal. Realtors again opposed Mr. Phillipsis a free-lancewriterbasedin Houston. the plan, and were joined by the owners of proper ty in Houston's older residential neighborhoods. The zoning proposal was submitted to voters in a non-binding referendum in 1948. It was rejected by a two-to-one margin, and plans for zoning were temporarily dropped. Not easily discouraged, zoning advocates raised the issue again in 1957.Five years later, voters once more went to the polls to cast their ballots on zon ing. Though zoning was again rejected, the margin of defeat was much narrower.

The most recent push for zoning began in earnest in the early 1980s. Public opinion is now much more supportive of property use controls. Through the slow erosion of property rights, Houston is being prepared for a comprehensive zoning plan. During the past decade the city has passed or considered at least eight ordinances aimed at con trolling private property. In other cities, these or dinances would have been included in a compre hensive zoning ordinance. In Houston, they represent what some critics call a "backdoor" ap proach to zoning. In most cases, city officials have aimed their restrictions at unpopular businesses and development practices. Often regarded as the billboard capital of America, Houston enacted an ordinance in 1980 that severely restricts the size and location of bill boards and outdoor signs. Mayor Kathy Whitmire and a majority of the City Council support the re strictions, as does one of the city's major newspa pers, The Houston Post.

Another backdoor approach to zoning during the past decade has been increased regulation of sexually oriented businesses. As with billboards, the absence of zoning and the booming economy of the late 1970sand early 1980sallowed such busi nesses to proliferate. The city has responded with a growing number of ordinances regulating the lo cation and operation of these businesses. The pub lic has been very supportive of the controls. To many Houstonians, including some zoning opponents, controls on billboards and sexually ori ented businesses are unrelated to zoning. Both or dinances have received enormous public support, yet zoning~in its traditional form~remains rela tively unpopular. However, the growing acceptance of controls on private property is paving the way for comprehen sive zoning. Both intellectually and politically, at titudes toward zoning are changing. Advocatesof Zoning Over the years, the arguments put forth by zon ing advocates have changed very little. What has changed is the public's acceptance of those argu ments, many of which have been economic. Zon ing supposedly protects property values by pro hibiting "undesirable" land uses. An article in The Houston Post in 1929 argued that "special ization by districts [zoning] increases the efficiency and value of real estate."l More recently, Houston architect, planner, and urban designer Peter Brown and City Planning Commission member Kay Crooker wrote that zoning "gives investors and developers confidence in the economic strength and future potential of an area."2 Zoning, its advocates insist, is essential to long-term economic growth.

Ironically, while some assert that zoning is es sential for attracting investors to Houston, others are denouncing those same investors. "There are investors in Toronto and Mexico City,Denver and Pittsburgh," wrote Post columnist (now Editor) Lynn Ashby in 1982,"who don't give a hoot about living conditions in our town, but make a bundle off our problems."3 We need zoning, Ashby says, to control these "greedy absentee landlords." While the advocates of zoning are unsure whether restrictions on property are necessary to attract or to control investors, they agree that zon ing willprotect the city's "quality of life." In a 1960 report, the Houston Commission on Zoning stated that "we must now zone ourselves so that our chil dren may live in a city that is not chaotic." Twenty 73 years later, Lynn Ashby wrote: "[W]e are probably creating an unlivable city for our grandchildren. "4 Like statists of every variety, advocates of zon ing seek to impose their vision of the "good life"

on everyone. Declaring the free market "chaotic" and "unlivable," they insist that they know the so lution and can make the world a better place for everyone. Of course, there is a cost for this utopia: freedom. Brown and Crooker wrote: "Perhaps one of the reasons some politicians and developers in Hous ton have traditionally opposed city planning is its very democratic nature~it redistributes some of the power and decision-making authority and in vites public debate on important issues."5 The "important issues" are the uses of private property. To "redistribute some of the power and decision-making authority" means to take from those who have earned and produced and to give to those have done neither. The advocates of zon ing seek to use political power~physical force-to redistribute economic power-production. Planningand Zoning In Houston, zoning is regarded as a four-letter word. Some call it "that Z-word." Like the early 20th century Progressives, who advocated social ism yet wanted to avoid the stigma attached to that word, pro-zoning forces try to hide their true inten tions. They generally prefer the term "planning."

This euphemism has been used to great advan tage by zoning advocates, who frequently cite the many advantages of master-planned communities. Such developments abound in the Houston area. Deed restrictions-i.e., voluntary contractual agreements-control property use in these com munities. The popularity of master-planned com munities is often used to justify city-wide planning. 6 For years, the city's Planning Depart ment, Mayor, and City Council have called for in creased city planning. Now in the process of devel oping a comprehensive city plan, Planning Director Efraim Garcia has said that the proposed system willbe"informational" rather than manda tory. In other words, the city will "suggest" land uses, rather than require them. Many see the planning process as a compromise between zoning and laissezfaire, between govern ment control and private control. Groups such as 74 THE FREEMAN • FEBRUARY 1990 Houstonbillboardcompaniespresenttheircase to thepublic.

the Houston Apartment Association-which has vehemently opposed zoning in the past-endorse the planning process. Planning differs from zoning, its supporters ar gue, because planning does not have the power of law, i.e., a developer cannot be prevented from de viating from the plan. But recent experience demonstrates that that can ,change.Until recently, the Houston City Planning Commission had no enforcement powers. Today, the commission can impose fines to penalize violators of land-use ordi nances. Once a comprehensive plan is accepted, implementing zoning will be merely a matter of giving the Planning Commission further enforce ment powers. A Signof the Tunes Following the passage of a sign and billboard or dinance in 1980, the outdoor advertising industry took the matter to the courts. The ordinance even tually was upheld by the Texas Supreme Court. One of the provisions of the ordinance allowed for the creation of "scenic or historic districts" in which outdoor signs are severely restricted. The City Council has created numerous districts around the city, and civic groups have begun pre senting petitions to the council calling for similar status in their areas.

Two of the city's largest developers-Gerald Hines and Kenneth -Schnitzer,support controls on billboards. In 1984 Schnitzer sent 500 letters to civic and trade organizations trying to raise sup port for legislation aimed at "visual pollution" in Houston. Hines is on the advisory board of Bill boards Limited, a local anti-billboard group. "Damn it, we've got to clean this city up," Schnitzer once said in explaining why he supports such controls'? In the past, businessmen and devel opers have been the primary defenders of property rights in Houston. Today, this is no longer true. Men like Hines and Schnitzer, and business orga nizations like the Chamber of Commerce and the Houston Economic Development Council (which Schnitzer founded), openly endorse greater gov ernment controls on private property. After the Texas Supreme Court upheld the Houston ordinance, local billboard companies be gan using their signs to present their case to the public. "Billboards Affect 5,135 Houston Jobs,"

declared one. "Billboards Protect Freedom of Speech for Social and Political Messages," said an other. But these signs have had little impact, large ly because the public and the industry agree on one basic premise: the right of the city to regulate the sign industry.

PROGRESSIVISM COMES TO HOUSTON 75 In an Op-Ed article for The Houston Post, Rob Schmerler, president of the Harris County Out door Advertising Association, wrote: "Outdoor advertisers are very much in favor of stringent reg ulation and control of billboards." He went on to write that the "industry agrees with the majority of Houston's sign regulations and is working toward fair compromises of our few differences."8 Having agreed that the city can regulate their in dustry, billboard companies can only squabble over the level of that regulation. This is like a banker agreeing to be robbed, and then complain ing that the robber has taken too much. Once a principle is accepted, debating its application is pointless. The PoliticalClimate Traditionally, advocacy of zoning meant pOliti cal death in Houston. In recent years, as property controls become more acceptable, this has been changing.

For example, in 1987 five candidates for City Council supported zoning, in one form or another. A candidate for mayor in 1989 ran on a pro-zoning platform. And the city's comptroller once suggest ed that zoning might be appropriate to control the city's traffic problems. Planning Director Garcia has said that the land use controls adopted by Houston differ from tra ditional zoning. Traditional zoning tells developers what they can and cannot do with their property. In Houston, Garcia says, land can be used for any thing, "as long as it doesn't negatively impact ad joining parcels," a policy known as performance zoning. 9 Of course, what is considered a "negative impact" depends upon one's tastes and values. It is frequently an esthetic issue, and always a moral one. When the government is permitted to deter mine values-whether moral or esthetic-the val ues of some are forced upon others.

The growth of government is frequently a grad ual process, as new controls are enacted to try to correct the problems caused by previous controls. The issue of zoning in Houston is an example of this. While land use has remained relatively free in Houston, much of the supporting infrastruc ture-such as water, sewage, and roads-is con trolled by the city. Today, the city's inability to plan future infrastructure needs is one of its primary ar guments in favor of developing the planning pro cess. In a totally free society, where water, sewage, and roads would be provided by the private sector, the city would have no such concern. The Outlook Houston is a city ripe for zoning. The public readily accepts controls on land use, and the city soon will have a comprehensive plan in place. As more politicians and citizens openly call for zon ing, it is only a matter of time before that demand is satisfied.

Houston has virtually no organized intellectual defense of property rights. Even those most directly affected by the city's growing list of restrictions-the billboard companies and developers-support land-use controls. The victims of land-use controls are sanctioning their own enslavement. Through appeasement and compromise, they are allowing the city to dis pose of their achievements. They grant the city the power to control them, then timidly complain that the controls are excessive. By then, it is too late.D 1. B. C. Burchfield, "Thawing Houston Real Estate Market," The Houston Post, December 29, 1929. 2. Peter Brown and Kay Crooker, "We've Strayed Far from City Planning," The Houston Post, April 17, 1988. 3. Lynn Ashby, "Houston Overdue for Sensible Plan," The Houston Post, June 3,1982. 4. Lynn Ashby, "Boom Town," The Houston Post, March 4,1980. 5. Brown and Crooker. 6. For a fuller discussion of master-planned communities, see my article "Private Cities" in The Freeman, March 1989.

7. Lisa Paikowski, "'Visual Pollution' Target of Development Council," The Houston Post, December 9, 1984. 8. Rob Schmerler, "We Need to Look at What's Right with Bill boards," The Houston Post, April 27, 1987. 9. Bob Sablatura, "Council Vote Ignites Zoning Battle," Hous ton Business Journal, September 22, 1986.