Brian Phillips at Live Oaks contacted me regarding the recent post by Stephen Smith on planning in Houston. Brian is a long time opponent of land use restrictions and defender of property rights in Houston. Brian has a different point of view on the subject, and has written a post on his blog, which I hope will spark some lively conversation.
Brian invited me to publish a copy of his post at Market Urbanism. Tomorrow, I hope my schedule gives me the opportunity to share some of my thoughts on the topic, because I sympathize with both authors’ points of view. In the meantime, I want to share Brian’s post right away to get readers reactions to it:
Urban Legends: Myths About Houston
by Brian Phillips
In a recent posting titled “Is Houston really Unplanned?” on Market Urbanism, Stephen Smith attempts to debunk alleged myths about Houston and planning. In the process, he actually engages in a much more widespread error–the failure to essentialize. (Here is a good explanation of essentializing.)
Smith cites several examples of land use regulations in Houston, such as minimum lot size mandates and regulations dictating parking requirements for new development. He argues that these regulations, along with the city’s enforcement of deed restrictions, refute claims that Houston has developed primarily on the basis of free market principles.
Smith’s position is common. Zoning advocates actually used similar arguments in the early 1990’s. Zoning advocates were wrong then, and Smith is now.
Admittedly, Houston is not devoid of land use regulations. But the nature, number, and scope of those regulations is significantly different from other cities. There is an essential difference between the regulations in Houston and those in other cities. The permitting process in Houston is relatively fast compared to other cities, and the expenses incurred in that process are also significantly lower in Houston. In other words, developers in Houston can respond much more quickly to changes in the market and do not incur exorbitant costs that must be passed on to consumers.
This is not a justification for the regulations that Houston does have. They are wrong and immoral, as are all land use regulations. But the fact is, Houston has far fewer and much less egregious restrictions on freedom than other cities.
Smith, and many others, attempt to paint a picture of Houston land use policies with a very wide, and indiscriminate, brush.
Boosters of Houston’s land use policy – those who believe that Houston’s land use patterns are the free market, revealed – never mention the restrictive minimum lot size and minimum parking requirements. They mention deed restrictions as free market innovations but fail to see how the city’s prosecutors turn private concerns into public budget drains.
If someone defends Houston’s relatively free land use policies, pundits such as Smith seem to assume that those advocates defend all of Houston’s land use policies. This is akin to believing that if someone likes one of Clint Eastwood’s movies, he likes all of Clint Eastwood’s movies (and everything else Clint Eastwood does). This is patently absurd.
As an example, Smith cites opposition to a proposed project at 1717 Bissonnet (the Ashby High Rise) as evidence that Houston does not have a laissez-faire policy towards land use. Smith implies that one particular violation of property rights is evidence that Houston is no different from other cities. He evades the fact that the vast majority of development projects proceed with little or no obstruction from the city.
I have defended the Ashby High Rise many times on this blog and at a panel discussion at Rice University. I have defended the project as a matter of principle–land use regulations are wrong and immoral. I have also addressed numerous other violations of property rights on this blog and elsewhere for nearly twenty years. To claim that “[b]oosters of Houston’s land use policy” have ignored the city’s violations of property rights is simply untrue. It may be true of some, but not of all. Smith chose to put all of us in the same boat with a broad generalization that flies in the face of the facts.
The fact is, Houston has fewer land use restrictions than other cities. Those that do exist are less restrictive (in general) than the restrictions in other cities. Those that do exist are less destructive than the restrictions in other cities. Again, the restrictions that do exist are indefensible.
Smith’s argument amounts to: Either Houston is completely laissez-faire or it is just like every other city. This ignores the degree of the transgression. This equates a pickpocket with a murderer. Both have violated the rights of another. Both have engaged in evil, but on a much different scale. To equate the two is to diminish the murderer’s evil. To equate Houston with cities that erect mountainous obstacles to development is to diminish Houston’s greatness.
But painting with a wide brush is not the only error that Smith makes. He questions the validity of contracts:
Another form of planning that Houston has, which is celebrated by the self-titled Antiplanner, is the institution of supposedly voluntary deed restrictions, or private land use covenants agreed upon by the owners of the property under restriction. I’m personally torn over the “libertarianness” of such schemes – are they truly voluntary? Can an individual owner of a property opt out of them once they’ve been signed? What’s the statute of limitations? One thing that makes me suspect that they perhaps aren’t as “free market” as they seem is that though the contracts are between individuals, Houston’s city code allows the city attorney to prosecute these lawsuits at no cost to the supposed victims – fellow property-owners.
Consider Smith’s own question– “Can an individual owner of a property opt out of them once they’ve been signed?” In other words, after a contract has been signed, can one party unilaterally breach that contract? This is nothing more than a desire to invalidate the very concept of contracts. If one party can unilaterally breach a contract, contracts–all contracts–are rendered meaningless.
A contract is an agreement to engage in certain actions over a period of time. If one party can unilaterally breach that contract–that is, declare the agreement void–the contract isn’t even worth the paper it is written on.
I agree that the city should not be enforcing deed restrictions–that is the responsibility of those who are party to the contract. But this error on the part of the city does not invalidate the fact that Houston remains freer than other cities. Smith fails to distinguish between minor transgressions and major.
A right is a sanction to act according to one’s own judgment without seeking permission from others. In this regard, Houston recognizes individual rights more consistently than other cities. This does not mean that Houston is perfect–it means that Houston recognizes individual rights more consistently than other cities. Where Houston does not recognize individual rights, it is wrong.
But Smith–and those who share his position–uses isolated facts to argue his case and then fails to identify the essence of those facts. He implies that all “[b]oosters of Houston’s land use policy” are the same. He implies that the voluntary and contractual planning that accompanies deed restrictions is no different from zoning or other coercive land use regulations. Both of these implications are false.
When one does not think in essentials, disparate facts can seem very similar. On the surface, deed restrictions and zoning might seem the same–both restrict land use. But the former is voluntary and consensual, while the latter is coercive and mandatory. There is an essential difference between the voluntary and the coercive. There is an essential difference between allowing individuals to act on their own judgment and forcing them to act contrary to their judgment. There is an essential difference between Houston and every other major city in the nation.
Basically what your argument comes down to is while Houston indeed has some restrictions, the restrictions aren’t as bad as in other cities. This is a very rational and valid argument, but to be honest, you haven’t really given me much reason to believe it, either empirical or anecdotal. But when I actually try to find empirical measures of the freedom to develop, I find Houston as restrictive in terms of density as other cities. For example, in terms of townhouses and allowing them or not, developers in Houston are clearly much more restrained than in other American cities. As Lewyn writes in the paper that I cited:
Another empirical point of comparison is minimum parking regulations. If you compare Houston’s to other cities’ (here’re some examples), again, you see that Houston is either as restrictive or more so than other urban areas.
So, I’ve presented my evidence – where’s yours? It’s easy to say that Houston has fewer restrictions, but where’s the proof?
Sorry about that – obviously I’m generalizing, as there’s no way I can claim to have read every single opinion on Houston’s land use policy. But from what I have read, many people (including many mainstream publications like the NYT) have stated, without qualifications, that Houston does not have land use regulations. I should have qualified my statements with modifiers like “most” or “many,” but frankly, I didn’t think anyone would take it so literally.
…as for the deed restrictions, I think I’m going to have to duck out of defending that statement. While I still believe it, I think the issue is a lot more complicated than you’re making it out to be, so I’ll leave that discussion for another time. (Mostly, though, it just comes down to a matter of degree – to what extent are the covenants prosecuted more than they would be if they were treated like regular contracts? But it’s very difficult to quantify the effects, especially since I’m not in a position to do any original research.)
Basically what your argument comes down to is while Houston indeed has some restrictions, the restrictions aren’t as bad as in other cities. This is a very rational and valid argument, but to be honest, you haven’t really given me much reason to believe it, either empirical or anecdotal. But when I actually try to find empirical measures of the freedom to develop, I find Houston as restrictive in terms of density as other cities. For example, in terms of townhouses and allowing them or not, developers in Houston are clearly much more restrained than in other American cities. As Lewyn writes in the paper that I cited:
Another empirical point of comparison is minimum parking regulations. If you compare Houston’s to other cities’ (here’re some examples), again, you see that Houston is either as restrictive or more so than other urban areas.
So, I’ve presented my evidence – where’s yours? It’s easy to say that Houston has fewer restrictions, but where’s the proof?
Sorry about that – obviously I’m generalizing, as there’s no way I can claim to have read every single opinion on Houston’s land use policy. But from what I have read, many people (including many mainstream publications like the NYT) have stated, without qualifications, that Houston does not have land use regulations. I should have qualified my statements with modifiers like “most” or “many,” but frankly, I didn’t think anyone would take it so literally.
…as for the deed restrictions, I think I’m going to have to duck out of defending that statement. While I still believe it, I think the issue is a lot more complicated than you’re making it out to be, so I’ll leave that discussion for another time. (Mostly, though, it just comes down to a matter of degree – to what extent are the covenants prosecuted more than they would be if they were treated like regular contracts? But it’s very difficult to quantify the effects, especially since I’m not in a position to do any original research.)
This is a page full of informative content. I’d like to see some other examples of cities and compare them to each state.
This is a page full of informative content. I’d like to see some other examples of cities and compare them to each state.
The biggest problem with Houston-style deed restrictions is that, in their present incarnation, they are essentially contracts of adhesion. Virtually every new house constructed in suburban Houston comes attached with an ultra-long-term contract restricting the land to single-family use. Thus while buyers inside the loop have a variety of neighborhood types and housing styles to choose from, buyers outside Beltway 8 – where most new suburban development is occuring – have two choices: deed-restricted single family, or don't live there.
That's not too far from conventional zoning.
The reason this situation exists is that the city incentivizes the deed restriction process. The required right-of-way for any new street in Houston is 60 feet wide, but that drops to 50 if you add a 50-year deed restriction for single family. The required width for a side street varies from 32 to 40 feet, but you can get away with 28' back-to-back if your land is deed-restricted single family. Since street improvements represent a significant chunk of the cost of development, any developer who wants to sell residential lots is enticed into setting up long-term deed restrictions. As we've recently learned from a certain best-selling pop psychology tome, such “nudges” can be quite influential.
If the city ceased incentivizing the deed restriction process, and in fact encouraged a wider variety of regulatory structures (including both unrestricted single-family plots, as well as shorter-term restrictions that expire in 25 years, like those that governed the initial development of the Heights), then Phillips' point about contracts would be spot on. At present, though, segregation of uses through deed restrictions is a “take it or leave it” proposition, which undermines the basic foundation of contracts as equitable instruments negotiated between individuals.
A question about zoning related to my own town: We have a small municipal airport here, and our zoning regulations thereby prevent us from constructing buildings above a certain height, in order to prevent accidents. Are municipal zoning regulations justified in this case, or is there an alternative available?