SE Texas Record

Friday, September 20, 2019

Appeals court backs Houston regarding enforcement of HPO


By Carrie Bradon | Jul 8, 2019

HOUSTON -- An appeals court has ruled in favor of Houston regarding the enforcement of an HPO, ruling the appellants failed to meet their burden of evidence.

Kathleen Powell and Paul Luccia had filed an appeal in the Court of Appeals First District of Texas against the city of Houston. 

Justice Evelyn V. Keyes ruled June 25 that the plaintiffs' allegations were not valid and affirmed the trial court’s take-nothing judgment in favor of the city. 

The appellants own a property in Heights East, which is an historic district. The city amended the HPO in 2010, eliminating the property owners’ rights to obtain a 90-day waiver certificate for any property in an historic district and updated guidelines regarding new construction and alteration to historic and non-historic buildings in the Heights East area. The appellants filed a suit, seeking declaratory judgment in 2014 that the HPO is void and unenforceable as it violates the city charter’s prohibition against zoning. 

The case was tried in February 2018 and the city argued that the HPO was not a zoning ordinance. The appellants challenged the validity of the HPO, alleging the HPO is indeed a zoning ordinance.

The appeals court has found that the appellants have failed to identify a comprehensive plan either now or when the HPO was passed and the city claims that there is nothing in the HPO that makes it a comprehensive plan. The court agreed that the historical preservation can be encompassed within more comprehensive zoning laws and that some jurisdictions’ zoning laws do provide for protection of historical preservation. 

“[Powell and Luccia] have presented no authority indicating that the legislature’s grant of authority to pass zoning laws displaces a city’s inherent authority to engage in more limited land-use regulation, nor could we find any,” the court ruled. “We conclude that the homeowners failed to sustain their burden to show that the HPO was an improper zoning ordinance. Accordingly, we overrule the homeowners’ first issue on appeal. Because we have concluded that the HPO is not a zoning ordinance, we likewise conclude that it does not violate the City Charter’s limitations on the city’s zoning power or the provisions of Chapter 211.” 

Court of Appeals First District of Texas case number 01-18-00237-CV

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