A bold case against zoning

By M. Nolan Gray

July 11, 2022

Rising amid the rain-soaked coastal plains of Southeast Texas, Houston wouldn’t seem real if it didn’t, in fact, exist. Despite being nearly 50 miles inland from the Gulf of Mexico, it now has one of the nation’s busiest ports. And when the city was slammed with some of the worst flooding in U.S. history in 2017, it didn’t lose population—on the contrary, it gained roughly 30,000 new residents. It’s also the only major U.S. city without zoning.

Unlike every other big city in America, the Bayou City makes no pretense at trying to comprehensively segregate land uses or control densities. There are no single-family zones, no height limits, no arbitrary distinctions about where shops can open up. When the zoned American lands in Houston, they are liable to be struck by parking lots reinventing themselves as apartment buildings, by postwar subdivisions transforming into dense new townhouse districts, by old strip malls being reimagined as new satellite business districts. In the zoned city, any one of these developments would be a major ordeal, the subject of endless permitting and raucous public hearings—in Houston, it just happens.

Far from the doomsday predictions made by the zoning pushers in bygone eras, unzoned Houston works just fine. Between 1970 and 2020, the city nearly doubled in population from 1.2 to 2.3 million, assuming the title of America’s fourth-largest city. Attracting a blend of working- and middle-class Americans and international migrants seeking opportunity, Houston is now our nation’s most diverse city.

Thanks in part to a lack of zoning, Houston builds housing at nearly three times the per capita rate of cities like New York City and San Jose. It isn’t all just sprawl either: In 2019, Houston built roughly the same number of apartments as Los Angeles, despite the latter being nearly twice as large. This ongoing supernova of housing construction has helped to keep Houston one of the most affordable big cities in the U.S., offering new arrivals modest rents and accessible home prices even amid seemingly endless demand.

Houston is by no means a model for planning. Like every other Sun Belt city, it struggles with segregation and sprawl. Yet its continued success as one of America’s most affordable and prosperous cities reveals the workability—indeed, the desirability—of non-zoning. Houston is a profoundly weird place, resistant to seductive oversimplifications. But it provides insight into what comes after the arbitrary lines that have misshapen our cities—and how we might get there.

The Compromise That Saved Houston

So why didn’t Houston adopt zoning like every other U.S. city? The answer comes down partly to process. Unique among major cities, Houston subjected zoning to a citywide vote. While most city councils had, historically, quietly adopted zoning after a few perfunctory public hearings, the Bayou City invited voters to decide on zoning in 1946, 1962, and 1993. Voters rejected it each time—a reality that calls into question the often-postulated popularity of zoning.

Zoning critics rightly dispensed with the comforting myths surrounding zoning—that its purpose was to merely rationalize land use—and zeroed in on its tendency to restrict new housing construction, limit access to opportunity, institutionalize segregation, and force growth outward. Far from being duped, Houston’s working-class residents exhibited a subtler understanding of the purposes of zoning than many contemporary planners and rejected it accordingly.

But the answer to why Houston remains unzoned also comes down to politics. Zoning proponents didn’t merely lose the referendums—they were also tactfully bought off by being allowed to have something resembling zoning in their immediate vicinity. Indeed, the dark little secret of non-zoning in Houston is that it depends on a system of land-use regulations known as deed restrictions, which empower certain communities—principally middle- and upper-class homeowners—to effectively “opt out” of non-zoning, writing their own land-use rules for their own neighborhoods. In exchange, Houston is able to protect the vast majority of the city from the types of arbitrary-use distinctions, density limits, and raucous public hearings that cause so much harm in every other U.S. city. That is to say, in exchange for respecting pockets of private land-use regulation, Houston is able to grow, adapt, and evolve like no other city.

Deed restrictions are private, voluntary agreements among property owners—typically the homeowners of a particular subdivision or neighborhood—regulating how they can and cannot use their land. These rules are literally tied to the deed, meaning that a property owner must agree to them as a condition of the sale. Since the failed 1962 zoning referendum, the city has enforced these agreements on behalf of the relevant parties, refusing to issue permits that run afoul of their provisions and bringing legal action against violators.

Is this system of publicly enforced deed restrictions “basically zoning,” as some might argue? On the one hand, deed restrictions—like zoning—demarcate specified areas subject to a distinct set of stricter land-use rules. Both zoning and deed restrictions in Houston are enforced by the government, principally with the aim of propping up home values and maintaining a certain quality of life. Many deed restrictions even have rules banning apartments and enforcing a strict two-and-a-half-story height limit.

Yet, the similarities end there, and Houston’s system of deed restrictions is a significant improvement over zoning. For starters, deed restrictions only cover an estimated quarter of the city, largely in areas with low-rise, detached, single-family housing. Industrial areas, commercial corridors, mixed-use and multifamily neighborhoods, urban vacant lots, and yet-to-be-developed greenfields are virtually never subject to their provisions. This means that roughly three-quarters of Houston—including its more dynamic sections—are largely free to grow without anything even resembling zoning holding them back.

Another key difference is that deed restrictions must be voluntarily opted in to. This serves to discipline deed restrictions in a way that is rarely true of zoning: If the rules are stricter than what prospective homebuyers might prefer, or not strict enough, or simply focus on the wrong concerns, this may translate into lower home values. This in turn nudges homeowners to think through the optimal form of land-use regulation to a degree that rarely happens with zoning.

How Cities Organize Themselves

If deed restrictions only control around a quarter of the city, how does land use work in the rest of Houston? One of the things you might be struck by is the extent to which Houston isn’t pure chaos. Contrary to what pure zoning theory might lead you to believe, cities contain within themselves the mechanisms for sorting out the most incompatible uses. Far from being an anarchic mess of factories next to homes and incoherent density patterns, Houston exhibits much of the desired-use segregation and density clustering that zoning is theoretically supposed to enforce.

The issue of land planning can be reduced to one question: How do we determine what should go where? While zoning tries to solve this problem through brute force, a more elegant solution reveals itself in Houston. Even before zoning, differing locational needs help to nudge the most incompatible uses apart:

• Industries need to be where land is cheap and transportation is accessible, and complaining neighbors are few and far between.
• Large office and commercial centers thrive on the visibility and access afforded by major corridors and transit interchanges.
• Residential developments are content to fill up the quiet side streets in between, along with inoffensive retail—think corner stores and cafés.

The patterns of demand that drive density seem to follow a universal trend, from Toronto to Taipei: They peak at the center of the city and gradually fall moving outward. Employers want to be in central locations so they can tap into the largest labor pools possible while residents want to be close to these hubs so they may maximize their choice in employment.

Land-Use Regulation after Zoning

Houston may be free of zoning, but it’s hardly free of rules. But unlike in the zoned city, the city’s land-use regulations are overwhelmingly focused on actual nuisances, rather than hand-wavy concerns over community character. For example, Houston—like many cities—has a strictly enforced noise ordinance aimed at addressing a major quality of life concern otherwise ignored by zoning. Land uses that generate added fire risk are strictly proscribed, as are activities that create unwanted smells. Naturally, floodplain development—which risks worsening the floods that plague the city—is strictly regulated. And a set of rules at the county level creates a framework for dealing with light pollution.

The city also proactively regulates specific troublesome uses. Pursuant to city regulations, slaughterhouses—an early zoning boogeyman—must remain 3,000 feet from the nearest residence; oil wells cannot be within 400 feet. Strip clubs and other adult-oriented businesses cannot be within 1,500 feet of a school or church; liquor stores and bars cannot be within 300 feet. Where markets fail, these types of rules fill the gaps, without all the added baggage of zoning.

How to Abolish Zoning in Two Easy Steps

The example of America’s great unzoned city offers certain actionable insights to prevent zoning where it doesn’t already exist and incrementally unwind it where it does. Drawing on the lessons of Houston, let’s consider what an off-ramp for zoning might look like.

First, to stop the spread of zoning, the adoption of any new zoning code should be conditioned on supermajority support in an even-year public referendum. Historically, zoning codes were adopted in a shady and undemocratic process, with city councils delegating drafting powers to an appointed commission and summarily adopting its proposals, which were often heavily dictated by special interests. As the repeated failure of zoning referendums in Houston and various other cities in Southeast Texas reveals, when residents are given an actual say on whether to adopt zoning, the process isn’t nearly so seamless.

Second, state and federal policymakers should draw from the lessons of Houston in developing, promoting, and heavily incentivizing the adoption of a post-zoning system of land-use regulation that achieves the posited benefits of zoning, without its many manifest flaws. Houston accomplishes this in two ways. First, by allowing those neighborhoods with an extreme preference for zoning-like regulations to voluntarily opt in to stricter rules—while leaving them with little say as to what happens outside their borders—and second, by narrowly and effectively regulating the specific uses and nuisances that actually upset people.

The ultimate lesson of land-use regulation in unzoned Houston is that, if a vocal minority of homeowners with unusually strong preferences for zoning are given what they want, they will leave the rest of the city alone. Once such groups are satiated with deed restrictions that perform roughly the same function—yet without doing all the damage of a typical zoning code—it’s unclear that there will be any constituency for zoning left to raise a stink. And once zoning is out of the way, a lot of the other challenges facing cities become much easier to solve.

Houston is by no means a perfect city. In the same way that it reveals what non-zoning can accomplish when it comes to housing affordability or access to economic opportunity, it also exposes the need for non-zoning forms of planning in addressing issues of equity and sustainability. Other than wisely bypassing zoning, Houston planners until recently made nearly every 20th century planning mistake in the book, building out a city that—while laudably affordable and accessible—was in many respects inequitable and unsustainable. Zoning is a necessary, if not sufficient, reform. Abolishing zoning doesn’t mean the end of planning—on the contrary, it’s only the beginning of a new chapter in planning.

From Arbitrary Lines: How Zoning Broke the American City and How to Fix It, by M. Nolan Gray. Copyright © 2022 M. Nolan Gray. Reproduced by permission of Island Press, Washington, D.C.

M. Nolan Gray is a city planner and an expert in urban land-use regulation. He is currently completing a PhD in urban planning at the University of California, Los Angeles, and is an affiliated scholar with the Mercatus Center at George Mason University.