My idea for a Houston "Land-Development" Ordinance

[GovernorAggie]

I've thought a little some about how some sort of development regulations could be implemented here in Houston and I think that a "Form-Based Performance Code" would work well here. It would have two main categories: Form and Performance--NOT use. I think that this type of code could not only work here, but also be supported.

Some top neighborhood complaints--

--Older, typical neighorhood house torn down for McMansion or for larger structure out of scale with neighborhood

--Too many cars or too much light given off or too much noise given off from home-based businesses

Other development issues--

--Large developments adding a lot of traffic to already beat-up roadways. For example, as much good that 2727 Kirby and Kirby at Westheimer developments will be, the traffic that they will cause is not going to do any favors for Kirby Drive.

--Broader-based tear downs--applies to neighborhoods where teardowns are occurring more quickly than neighbors can keep up with.

--Old and/or lapsing deed restrictions

I think that the typical property-rights advocates will on the surface be against something like this, however the key is that emphasis is not placed on the use of property but its scale, fit, and performance. These are all things that people complain about and there are some successes of neighborhoods fighting off certain developments, but I intuitively think that those successes are disproportionately in "better able" parts of town.

A Form-Based Performance Code would allow people to use property for a wide range of uses--the catch is that it just has to fit their location and not adversely affect the area--which are complaints that neighbors have.

Comments? Suggestions?

[TheNiche]

I've thought a little some about how some sort of development regulations could be implemented here in Houston and I think that a "Form-Based Performance Code" would work well here. It would have two main categories: Form and Performance--NOT use. I think that this type of code could not only work here, but also be supported.

Some top neighborhood complaints--

--Older, typical neighorhood house torn down for McMansion or for larger structure out of scale with neighborhood

--Too many cars or too much light given off or too much noise given off from home-based businesses

Other development issues--

--Large developments adding a lot of traffic to already beat-up roadways. For example, as much good that 2727 Kirby and Kirby at Westheimer developments will be, the traffic that they will cause is not going to do any favors for Kirby Drive.

--Broader-based tear downs--applies to neighborhoods where teardowns are occurring more quickly than neighbors can keep up with.

--Old and/or lapsing deed restrictions

I think that the typical property-rights advocates will on the surface be against something like this, however the key is that emphasis is not placed on the use of property but its scale, fit, and performance. These are all things that people complain about and there are some successes of neighborhoods fighting off certain developments, but I intuitively think that those successes are disproportionately in "better able" parts of town.

A Form-Based Performance Code would allow people to use property for a wide range of uses--the catch is that it just has to fit their location and not adversely affect the area--which are complaints that neighbors have.

Comments? Suggestions?

I'd hope that RedScare would correct me if I am incorrect in stating this, as it has been a couple years since I've been exposed to legal decisions regarding approaches to municipal planning, but if I am correct, there was a court decision back in the 1920's that prevented a broad spectrum of regulations from being implemented unless a city adopts a comprehensive plan inclusive of zoning. One such impact from this decision was that historic preservation ordinances are illegal unless a city has zoning and the accompanying comprehensive plan.

I can see individual neighborhoods undertaking efforts to get a few blocks at a time to fall under customized regulations (a.k.a. new deed restrictions), but I do not believe that it would be the right of a city to enforce such a code upon its entire populous.

Moreover, I think that such steps could be very shortsighted and have unintended consequences outweighing the benefits. If, for instance, the Kirby area is not allowed to densify, then the limitation upon supply will create artificially-high housing prices, preventing less affluent people from having the option of living in that neighborhood. Sure, that's great for landowning Kirbyites, but the law has then just had the effect of creating a class division within the city. Likewise, is it really a good policy to shut out wealthier citizens from the Heights by deincentivizing the construction of McMansions? Is class-segregation really that preferable?

I know that there will be folks that disagree with me...and that's fine...but my ideal vision of an urban neighborhood is one in which various people from all different backgrounds exist and interact in the same space. I don't like the idea of shutting someone or a group of people out just because they have different preferences than my own...and if I were raising a kid, I'd want both the elite and the 'trash' (however anyone may define it) living down the street if only to serve as an example of what or what not to do in order to become productive and respected members of society.

[KinkaidAlum]

The only places you see the classes mixed together tend to be in the older neighborhoods you just spoke about.

Additionally, it isn't the middle classes being kicked out of the Heights or Montrose. It's the poor or lower middle classes because they are more likely to live in a tear down (a property that is either smaller or not as well cared for) or a rental property that the owner decides to flip when the price is deemed right. You see the latter all the time on HAR, especially in Midtown, the Eastside, West End, Washington Corridor and a few other areas.

[GovernorAggie]

I'd hope that RedScare would correct me if I am incorrect in stating this, as it has been a couple years since I've been exposed to legal decisions regarding approaches to municipal planning, but if I am correct, there was a court decision back in the 1920's that prevented a broad spectrum of regulations from being implemented unless a city adopts a comprehensive plan inclusive of zoning. One such impact from this decision was that historic preservation ordinances are illegal unless a city has zoning and the accompanying comprehensive plan.

I can see individual neighborhoods undertaking efforts to get a few blocks at a time to fall under customized regulations (a.k.a. new deed restrictions), but I do not believe that it would be the right of a city to enforce such a code upon its entire populous.

Moreover, I think that such steps could be very shortsighted and have unintended consequences outweighing the benefits. If, for instance, the Kirby area is not allowed to densify, then the limitation upon supply will create artificially-high housing prices, preventing less affluent people from having the option of living in that neighborhood. Sure, that's great for landowning Kirbyites, but the law has then just had the effect of creating a class division within the city. Likewise, is it really a good policy to shut out wealthier citizens from the Heights by deincentivizing the construction of McMansions? Is class-segregation really that preferable?

I know that there will be folks that disagree with me...and that's fine...but my ideal vision of an urban neighborhood is one in which various people from all different backgrounds exist and interact in the same space. I don't like the idea of shutting someone or a group of people out just because they have different preferences than my own...and if I were raising a kid, I'd want both the elite and the 'trash' (however anyone may define it) living down the street if only to serve as an example of what or what not to do in order to become productive and respected members of society.

Concerning the issue of zoning--in Texas, a city with zoning would need a comp plan, but those two don't have to govern each other, i.e. the zoning ordinance does not have to fall in land with the long-range comp plan. But this point would only matter if I were suggesting a zoning ordinance. Zoning inherently deals with uses, sometimes moreso than the form.

Concerning one neighborhood doing something vs. the entire city--I would think that the entire city would be more 'equitable' than neighborhood by neighborhood. N'hood by n'hood is already what takes place, and it already shuts out too many differences. Deed restrictions can govern the colors of a house, for example, and are enforceable. Why should people along Kirby be able to to say, "hey, we don't allow purple houses" just because they don't fit with their HOA's individual vision? Why should it be ok to throw up a steel-building pawn shop on, say Scott St. than it is on say, West Gray? Looking at performance, why should it be ok to put a gas station on the 100% corner with one driveway on each street, killing the performance of the intersection?

I think that deed restrictions are the best example of practices that can, indeed became easily exclusionary. At least it has already been deemed unconstitutional to use zoning for that matter.

Also, notice that I specifically said that this would not deal with the use of the land, and for that matter, not the building materials, etc. Even if it did, why can't those along Kirby or in the Heights or in Afton Oaks petition to have their own district within the city? I would think something like this would take place anyway. We already have something like this in the throughfare plan (e.g. no residential frontage on thoroughfares).

For instance, if the Washington-Heights area had their own district, maybe the Target goes there, but it does a better job with the parking lot. These kinds of districts don't pay dues, and they don't have certain people deciding what they can or can't do with their lawns.

The idea for this came out of a lot of things, one of which is the lax enforcement of deed restrictions in various areas.

[TheNiche]

The only places you see the classes mixed together tend to be in the older neighborhoods you just spoke about.

Additionally, it isn't the middle classes being kicked out of the Heights or Montrose. It's the poor or lower middle classes because they are more likely to live in a tear down (a property that is either smaller or not as well cared for) or a rental property that the owner decides to flip when the price is deemed right. You see the latter all the time on HAR, especially in Midtown, the Eastside, West End, Washington Corridor and a few other areas.

No, you misunderstood. If restrictions prevent new higher-density development from occurring, the effective result is a cap on the density of a neighborhood. As applied to wealthy neighborhoods, the demand would continue growing at all price points, but if the supply is unable to shift to more dense residences in order to meet demand, then lower classes are profoundly adversely affected, but even the middle class is priced out of the market to a certain extent as older properties are renovated to match their competitive environments.

Likewise, if for instance, lot sizes and setbacks must be greater in certain neighborhoods to deincentivize McMansions, then the quality of the housing stock is limited in its upward price appreciation potential because a flipped property can only be upgraded so far before the marginal costs of the upgrades fail to result in matching or greater marginal benefits. The McMansion-buying set will then gravitate toward other neighborhoods, effectively deincentivizing wealthy citizens from living in the Heights.

The whole conundrum boils down to two words: Unintended Consequences.

[TheNiche]

Concerning the issue of zoning--in Texas, a city with zoning would need a comp plan, but those two don't have to govern each other, i.e. the zoning ordinance does not have to fall in land with the long-range comp plan. But this point would only matter if I were suggesting a zoning ordinance. Zoning inherently deals with uses, sometimes moreso than the form.

Concerning one neighborhood doing something vs. the entire city--I would think that the entire city would be more 'equitable' than neighborhood by neighborhood. N'hood by n'hood is already what takes place, and it already shuts out too many differences. Deed restrictions can govern the colors of a house, for example, and are enforceable. Why should people along Kirby be able to to say, "hey, we don't allow purple houses" just because they don't fit with their HOA's individual vision? Why should it be ok to throw up a steel-building pawn shop on, say Scott St. than it is on say, West Gray? Looking at performance, why should it be ok to put a gas station on the 100% corner with one driveway on each street, killing the performance of the intersection?

I think that deed restrictions are the best example of practices that can, indeed became easily exclusionary. At least it has already been deemed unconstitutional to use zoning for that matter.

Also, notice that I specifically said that this would not deal with the use of the land, and for that matter, not the building materials, etc. Even if it did, why can't those along Kirby or in the Heights or in Afton Oaks petition to have their own district within the city? I would think something like this would take place anyway. We already have something like this in the throughfare plan (e.g. no residential frontage on thoroughfares).

For instance, if the Washington-Heights area had their own district, maybe the Target goes there, but it does a better job with the parking lot. These kinds of districts don't pay dues, and they don't have certain people deciding what they can or can't do with their lawns.

The idea for this came out of a lot of things, one of which is the lax enforcement of deed restrictions in various areas.

What I don't like about your proposal, though, is that certain aspects of it can strongly influence land uses, even if that is not the explicit intent of the regulation.

There is one thing about Deed Restrictions that I like: either 1) the perponderance of landowners have to agree to them, or 2) people buy into a subdivision accepting the deed restrictions that come with it. As such, no one's (or very very few people's) property rights are ever violated without consent. And yes, they can become exclusionary...but only if everyone signs on to them...and that's their perogative as the owners--it would not be right of me to deprive their ability to make choices that I do not personally agree with. Also, as a responsible consumer, I obsessively make myself very concious of the legal environment of a neighborhood in which I plan to live.

[GovernorAggie]

What I don't like about your proposal, though, is that certain aspects of it can strongly influence land uses, even if that is not the explicit intent of the regulation.

There is one thing about Deed Restrictions that I like: either 1) the perponderance of landowners have to agree to them, or 2) people buy into a subdivision accepting the deed restrictions that come with it. As such, no one's (or very very few people's) property rights are ever violated without consent. And yes, they can become exclusionary...but only if everyone signs on to them...and that's their perogative as the owners--it would not be right of me to deprive their ability to make choices that I do not personally agree with. Also, as a responsible consumer, I obsessively make myself very concious of the legal environment of a neighborhood in which I plan to live.

Agreed. Certain aspects of form and performance could impact the uses. Not all uses put out equal amounts of light or noise. But then again, aren't these the types of issues that neighborhoods are concerned about (along with crime, traffic, etc.)?

I still think something like this proposal could work as some sort of hybrid. No one would want to destroy deed restrictions in neighborhoods such as River Oaks or Garden Oaks. That's where those districts come in. In my opinion, this form/performance code would get the most use in areas that either don't have deed restrictions or lost the enforceability of their deed restrictions through laches.

I think that areas covered by active, enforceable deed restrictions could me mapped out, and those "other" areas could be the ones that deal with this new code. If the area objects to the code and has a ready and willing body to deal with issues of form and performance in their neighborhoods, then fine--because let;s face it, they would be closer to their specific issues. However, neighborhoods near the corner of say, Ley and Wayside should have some sort of tool to protect their neighborhoods. This citywide code would be an option for them if they can't or won't put together an able body for their neighborhood.

[KinkaidAlum]

The problem with your argument lies in the fact that you assume the McMansion/Condo/Highrise craze in Houston creates more affordable housing.

Allowing the 2727 Kirby condo to rise will do NOTHING to help the lower classes move into the Upper Kirby area because the price per square foot is astronomical.

Likewise, the new condos in the Camp Logan, Montrose, Wards, Heights and other areas cost way more than the housing stock they replaced.

The densification of Houston is displacing the less well-off. In fact, many neighborhoods are losing people as apartment complexes, duplexes, fourplexes, and other forms of multi-family housing are replaced by condos that are being marketing to DINKs, singles, and empty-nesters moving back to the city.

If you were truly worried about having an egalitarian neighborhood that was open to all classes, then you would need to support stronger regulations that require developers to build below market rate housing into all new developments of a certain size. The 2727 Kirby would be required to offer a certain % of units (say 5%) to the working poor.

That's the direction Boston has been moving in...

[GovernorAggie]

I think that to a certain extent some of the hesitation to embrace certain kinds of property development guidelines gives some people a fear that it would make Houston harder to sell to different kinds of people. The lax development guidelines attract people who would like to build, settle, or trade quickly and at a low price. On the other hand, I think that like it or not, there will eventually be some sort of guidelines. Why? The protectionist nature of people. I heard the owner of McLane (sp?) Art Gallery on Richmond complain at one of those METRO University meetings that rail on Richmond would kill the neighborhood. He claims that Trammell Crow is about to build a mid-rise 350 or so unit complex on Richmond, replacing two businesses. His complain was that traffic would be terrible, and the scale of the development would not match the neighborhood. METRO's response to his complaints--"It's not a METRO problem, it's a Houston problem...you have no zoning, and there's nothing you can do to stop them from developing if they want to." Again, I'm not advocating zoning, because I don't think zoning would work here, but people are very concerned about the way a place looks and the effects a place has on its area.

Same thing with the holdout landowner at the Target on Sawyer. Remember them talking about how gentrification is taking over their area? Well like someone on this forum wisely posted--gentrification started when the first person sold their home and land. At least some sort of standards would ensure the fit of "improvements" to a neighborhood.