Early this month, a Texas judge ruled that developers can proceed with the Ashby high-rise in Houston, but that they have to pay nearby residents $1.2 million for damaging their property values. Planning advocates say this makes the case for zoning, while zoning critics say the damage award will merely encourage NIMBYs.
Developers plan to proceed with construction even as they promise to appeal the damage award. The case has been in court for seven years, damaging Houston’s reputation as a place where developers can easily get permits and build for the market.
Planning advocates should be careful what they wish for. As residents of Vancouver, BC, Portland, Seattle, and the San Francisco Bay Area have learned, zoning can be used to impose high rises and other high-density developments on neighborhoods that didn’t want them just as easily as it can be used to prevent such developments.
The Antiplanner wouldn’t want to see a high rise next door to my house. But Houston has a system of dealing with land-use disputes that is unusual if not unique. Most residential areas in the urban area, including about half the residential areas in the city of Houston, have deed restrictions and homeowner associations to monitor, enforce, and change those restrictions.
Residents of Rice Village, the neighborhood that objected to the high rise, either weren’t under such deed restrictions or their neighborhood didn’t include the parcels on which the high rise is to be built. In Houston, residents living in an area without restrictions can petition their neighbors and, if 75 percent agree, they can write their own deed restrictions. But apparently no one in Rice Village took the trouble to do this until after the high rises became an issue.
Property rights should be simple: you either have them or you don’t. If they had a right to limit the height of buildings in their neighborhood, they could have prevented the Ashby high-rise. But they didn’t have that right, so when they purchased their homes they should have been aware that such a high-rise could be built. As one of the Ashby developers said of the “damage” award, “you can’t be damaged by something that doesn’t exist.”
Zoning takes issues like this out of the area of rights and into the realm of politics, making it possible to change it on a political whim. Is the fad for high rises this month? Rezone someone’s land. Do industrial developers want more land and did they make the right campaign contributions in the last election? Then rezone someone’s land.
Will a land-use regime based on property rights always be perfect? No, but it will be better than one based on political power.