Zoning, More Than Just a Tool: Explaining Houston's Regulatory Practice

Abstract

The intent of this article is to understand why Houstonians reject zoning while simultaneously adopting a collection of mechanisms that serve zoning-type functions. The answer is found in discursive-institutionalist approaches that emphasize the symbolic meaning (besides the instrumental value) that people give to regulatory tools. Zoning as a label is generally associated with an interference with individual liberty. Apparently, the other interventionist instruments do not carry the same negative value, which makes it possible to implement them without much opposition. Discourses shape institutions, like planning regulations, and we need to unravel and to understand these processes in order to increase the performance of planning.

Introduction

In America and Western Europe, Houston became famous for its free enterprise regime (e.g. Kantor et al., 1997). Also in the planning field, Houston has often been cited as the example of free market competition (Neuman, 2003b). Its unique position has been investigated among others by sociologists (most notably Feagin, 1984, 1988), lawyers (especially Siegan, 1970, 1972) and planners (Neuman, 2003a, 2003b). For some, Houston's perceived laissez-faire approach is a role model for how other cities should approach urban development (e.g. Johnson, 1982). In the debates on different modes of planning regulation, especially in the market-government discussion, Houston is often referred to as the example of a city with a non-zoning tradition where the “free market” succeeds in allocating land uses efficiently (Neuman, 2003a). When looked at more closely, Houston's unregulated status seems more like a myth. Feagin (1988, p. 5) already noted that free enterprise is not the same as free market and that, contrary to what some say, Houston is by no means free from government intervention. Some (Larson, 1995; Kapur, 2004) go further and say that Houston, due to all its other land-use regulations, is a bad example of a free market city.

The intent of this article is to understand why Houstonians reject zoning while simultaneously adopting a collection of mechanisms that serve zoning-type functions. To analyse this, I use a discursive-institutionalist framework, which builds on sociological institutionalist accounts. It helps to understand the connection between discourses on the one hand and material practices and institutions on the other, as well as the dynamics within that relationship. In fact, we will see that both are indispensably related. Similar discursive frameworks have been applied within planning theory with regard to strategic spatial planning (Richardson & Jensen, 2003; Healey, 2004; Salet & Faludi, 2000; Albrechts et al., 2003; Neuman & Gavinha, 2005) and major urban planning projects (Throgmorton, 1996; Flyvbjerg, 1998). But they have rarely been used to look at discourses of zoning—land use or planning law in general—and its use in practice.

Empirically, I will divide the article into two parts: one on discourses and other on the actual development of land-use regulations. This distinction is purely analytical. The first part deals with the way in which the discussion about zoning is held. Throughout the twentieth century there have been several attempts to introduce zoning in Houston, none of which has been successful. What is striking is the politicized and emotional tone of that discussion and, related to that, the claimed significant positive and negative effects of zoning. Zoning is not treated as a socially constructed tool, but as something with ubiquitous propensities, regardless of who shapes it or gives meaning to it. The second part consists of an exploration of the current regulatory practice in Houston, which includes many land-use regulations that, like zoning, restrict private property rights, but which did not receive the same opposition. Some of those rules that have been adopted are used to regulate matters that in many other cities would be arranged in a zoning ordinance.

The empirical research has been conducted through various means. I have carried out an extensive archival research scrolling through the archive of the Houston Chronicle, the Houston Post, several libertarian (property rights) magazines and secondary academic sources. In addition, 11 in-depth interviews were held, with academics (planners and lawyers), local land use and planning officials and people from the development industry to explore and analyse the emergence and evolution of land-use regulations and practice.

After setting out the two empirical lines, it will be argued and explained that their apparent disconnection is, paradoxically, the result of the intimate link between them. The absence of zoning, and the polemic and ideological debates around it, has had its effects on the way land use is managed—through other means—today. In line with this, the argument that I make is that it is not so much, or not only, the content of the instrument zoning that is rejected by many Houstonians but more the label, which is more than anything associated with state intervention. Other restrictions of private property rights with a less ideological connotation have received less opposition and have emerged in response to the absence of zoning. The way the discourse of zoning has unfolded led to Houston's distinctive development control system.

A Discursive-Institutionalist Approach to Zoning

Many scholars who write about zoning from a theoretical angle (Fischel, 1985; Ellickson, 1973; Siegan, 1972; Berry, 2001; Peiser, 1981) work on the interface between law and economics. In more general terms, law and economics, like neo-classical economics, can be seen as a rational choice theory (Hall & Taylor, 1996). Zoning and legal instruments in general are predominantly seen as tools (Ringeling, 2002) that are adopted and applied based on criteria of effectiveness and efficiency so as to solve given problems and to serve given interests. The assumption of these economic analyses of law is that actors act rationally and seek to maximize their utility. In addition, this condition is given and held constant. The problem with such a strong emphasis on design and thereby with an instrumentalist view on institutional change is that it cannot explain why, out of a large number of alternatives, particular institutions are chosen in particular times and places while others are not and why only certain institutions survive in the long term. It cannot explain why many cities in the US have adopted zoning and Houston has not. To avoid an overly voluntaristic view, therefore, a theorization of institutional development and selection is required.

Many sociological institutionalists (Giddens, 1984; March & Olsen, 1989)1 replace the means-end rationality of the efficiency approaches by drawing attention to the symbolic and cognitive dimensions of institutions and institutional change (March & Olsen, 1989). Institutions have cultural significance, embody particular values instead of just serving them instrumentally and, therefore, provide meaning and frames of reference. As frames of reference, they orient and steer behaviour. Therewith, institutions provide structure and stability for particular groups or society at large. In planning theory this line of reasoning is followed by many (Gonzalez & Healey, 2005; Healey, 1997; Gualini, 2001; Verma, 2007). Some speak of an “institutional turn” in planning theory (Gualini, 2001).

From this sociological perspective, institutional change is guided not by a technical rationality that considers institutions as a means leading to certain ends, but by a social rationality based on interpretation and values. Planning is not only pursued on the basis of its ability to tackle spatial problems “here and now”, it can also be a result of habitual behaviour and path dependency. Wildavsky (1973) even argues that planning is pursued because it is regarded as a “secular faith”. In short, we need to look at planning not only with regard to its functional performance, we have to consider its wider role within society as well. Institutional development follows a “logic of social appropriateness” rather than a “logic of instrumentality” (March & Olsen, 1989). This does not mean that institutions cannot have an instrumental value: instrumentality can be socially highly appropriate and legitimate. This process becomes self-reinforcing when institutional development nurtures the development of frames of reference and values that further endorse the institution and serve to (self) perpetuate it.

In a sociological perspective, hence, values and views on desired objectives are not considered as external “givens” but as factors internal to institutional development. A key element in institutional development is the process of “institutionalization”. To explain institutionalization and institutional change empirically a third approach is necessary, called “discursive institutionalism”. It is closely linked to sociological institutionalism—one could even consider it part of it—but it is less static and better capable of explaining continuity and change of institutions (Schmidt, 2005),2 since it takes account of discourses and discursive changes that are more fluid than institutions.

Since the 1980s, there is what some call an argumentative or rhetorical turn (Throgmorton, 1996) and others an interpretative or communicative turn (Healey, 1997) in planning theory. There are similarities in the content under all these headings. Besides its normative orientation as a turn advocating communicative, deliberative and collaborative approaches to decision-making in planning (Forester, 1989; Innes & Booher, 2003; Healey, 1997), it is an important ontological shift away from rational choice approaches to understand planning in practice. The basic premise that deviates from rational choice is that social phenomena do not exist neutrally, but are made through socially constructed interpretations. It pays attention to how we shape the world by how we look at and by the words, metaphors and images, we use to “describe” or project it. This construction takes place through discourses that we make in interaction with each other and that affect us subsequently (Fischer & Forester, 1993).

Discourses are dynamic but are not always fluid, sometimes they stabilize and become institutions that guide human action. Hajer (1995) uses the concept “discourse institutionalization” to address this process in which discourses solidify into taken-for-granted rules of the game, that is, institutions. The current hegemonic discourse on climate change clearly leaves its traces in all sorts of formal and informal institutions that concern the way we deal with our environment. These structures then affect future ideas and discourses. However, after a certain period of time a hegemonic discourse can become contested by internal reflection and/ or external developments—for instance by demographic, technological or economic changes—which then challenges the institutional path (Buitelaar et al., 2007).3

The discourses through which institutions are shaped are constituted by words, metaphors and storylines (Krieger, 1981; Throgmorton, 1996; Yanow, 2003; Sandercock, 2004), and also by maps, graphs and images (Neuman, 1996; Duhr, 2007). The selection of words and images is an expression of power. Power relations and differences determine what counts as rationality (Flyvbjerg, 1998). Development control and land-use regulation is predominantly a local matter. Therefore, local power relations and hence local discourses have a major influence on how land-use regulation is carried out. In general, there is continuity in this local regime; it is not changed radically overnight. Changes to the way land is regulated occur incrementally through time. The choice of words—the constitution of discourses in general—determines the extent and the speed of institutional change, as we will also see in the next sections on the evolution of Houston's non-zoning practice.

In the next two sections, we will look at how the local regime and the distribution of power bear on discourses of zoning in Houston, and the way these have shaped land-use institutions. Because the discussions on zoning start no later than the beginning of the twentieth century like in the rest of the US, we can do no more than reconstruct the main line of argumentation, with more detail on the discussions in the early 1990s.

The Thwarted Road to Zoning

The basic principle of standard American zoning is separation of land uses into familiar categories, like residential, commercial and industrial, mainly to protect housing from industry. By now 92% of US metropolitan areas employ zoning (Hirt, 2007). Houston does not.

There have been five attempts to introduce zoning in Houston (see Philips (1990) for a more elaborate treatment of the early attempts). In 1912, the City of Houston hired an architect from Massachusetts to draw a zoning plan for the city. Until 1922, when the first Planning Commission was installed, not much attention was paid to this plan. In 1929, a zoning plan was presented to the City Council, but it was not adopted because many real estate developers were fiercely against it, since they did not want to be restricted in the freedom to build whatever and wherever they wanted.

Seven years later in 1936 it was suggested again to implement the 1929 plan. Eight years of neighbourhood meetings followed to gain support for this proposal. Again realtors objected to the plan, supported by the owners of some of the older residential areas. A zoning ordinance was put on the ballot in a referendum for the first time in 1948. Two-thirds of the voters voted against the introduction of zoning. But zoning advocates were not easily discouraged and put zoning on the agenda again in 1957, after which it was subjected to another referendum in 1962. The anti-zoning lobby again prevailed and the plan was rejected, but with a much smaller margin than in 1948 (43% for and 57% against).

The last referendum was in 1993. It was held because the opponents managed to gather the necessary 25,000 signatures to place an issue before the voters (Mcdonald, 1995). However, the dominant attitude towards zoning had changed until 1 month before the elections; there was much more support for zoning. The bill was supported by the city's mayor, his predecessor, all the council members, 160 homeowner associations, the Houston Post and the Houston Chronicle. In addition, a poll held in 1990 showed that 67% of the population supported the introduction of zoning (Soutchwick, 1994). There were several reasons for the growing support. Kirby and Lynch (1987) noted that the lack of zoning allowed incursions of residential areas by industry and overbuilding throughout Houston that has increased the chance of subsidence and flooding. More and more people became aware of these problems and wanted a tool that was capable of preventing those negative effects. Another factor that led to a trend favouring zoning was the economic crisis (due to an oil crisis) in the early 1980s, which also had an effect on property values. Houstonians thought house prices could only go up. When this did not seem to be the case, there was a growing demand for zoning as a measure to protect property values (Barlow, 1993). Philips (1990), who noticed this growing endorsement, attributed it to a slow process in the previous years by which Houston was made ready for zoning through the adoption of various ordinances that restricted private property rights. Philips (1990) argued: “Through the slow erosion of property rights, Houston is being prepared for a comprehensive zoning plan”. Philips pointed at the increased regulation of land use through means other than zoning, like the sign code that was introduced in 1980 to control the rapidly emerging signs in the city. He qualifies this as a “backdoor” approach to zoning.

It was Jim Greenwood, a councilman who earlier also endorsed this sign code, and an ordinance requiring developers to plant trees and shrubs, who formed a committee that proposed the introduction of zoning. He got the Mayor behind him. They acknowledged that, in order to pass the bill, it needed to be a “Houston-style” zoning ordinance. The main difference between Houston-style and traditional zoning would be that large undeveloped tracts would be defined as “open” instead of “agricultural”. This would save landowners the frustration of having to apply for a change in the zoning plan for residential or commercial land development (Soutchwick, 1994).

Altogether, everything seemed to be ready for zoning. Some, however, also pointed at a “submarine campaign” (Barlow, 1993) that was run by the anti-zoning lobby. Soutchwick (1994) describes the preparatory stage of the referendum nicely. Early 1993—the year of the referendum—two anti-zoning campaigners founded the Houston Property Rights Association (HPRA). One of them was an anti-zoning veteran who had successfully campaigned against zoning in 1948 and 1962 (see also Klein, 2000). In the same year another anti-zoning organization was set up, called Citizens for a Better Houston (CBH), by a city planning commissioner who was dissatisfied with the final version of the bill. CBH spent $500,000 and the HPRA $190,000 on appearances, TV advertisements, brochures, newsletters and radio advertisements to convince inhabitants of Houston that zoning would have a negative impact on their lives. They also succeeded in bonding with some minority groups, like the Baptist Ministers’ Association, a group of black religious leaders. These ministers feared that zoning could be used against church activities and to segregate minorities. Therefore, zoning was made a religious issue (Houston Chronicle, 1993). The president of the HPRA Barry Klein supported this: “Zoning will restrict churches and kill jobs in the black community; zoning will segregate minorities; zoning will raise rents and taxes; zoning will kill redevelopment and zoning will breed slums” (Soutchwick, 1994). An unusual coalition of conservatives, liberals, blacks, hispanics and whites emerged, having the same goals for different reasons. This proved to be a successful coalition, since the zoning bill was turned down again. The vast majority of low-income groups voted against it, whereas middle-income groups voted for zoning (see also McDonald (1995) for the voting behaviour of different groups). The result was a narrow victory for the opponents of zoning; they won 52% against 48%.

Recently, there is a new trend favouring zoning: a growing number of smaller cities in the vicinity of Houston have adopted it (see e.g. Houston Chronicle, 2004). In Houston itself, discussions started right after the referendum on other forms of zoning, like what was called a “voluntary neighbourhood ordinance” or an “area plan ordinance”. The core of both proposals is the same: the city would offer neighbourhoods the opportunity to draw their own zoning plan (Houston Chronicle, 1994, 2003). By emphasizing the element of self-determination by neighbourhoods, and leaving out the word “zoning”, the city tries to circumvent zoning and what is attached to it. More people, even initial opponents, seem to favour this new approach. But to date, no new zoning ordinance—neither public nor private voluntary zoning—has been adopted.

The Arguments

The debate in Houston has often been polarized and emotional, with accusations going both ways. Ashby (1980), arguing for zoning in Houston, says “We are probably creating an unlivable city for our grandchildren […]”. The president of the Houston Homeowner's Association said: “We have got to stop the cancerous erosion of the quality of life of many of our neighbourhoods. Those people are crying out for help. Zoning is the answer” (Saltzman, 1994). And Rosie Walker, a councilwoman, after the council unanimously voted for Greenwood's proposal to introduce zoning in 1991 excitedly states, while she wore a Z-button: “Hundreds of thousands of people are going to find their way of life and their investments better protected. Today, Houston took a great step to becoming a civilized, well-planned city with a better understanding of the golden rule” (Houston Chronicle, 1991). At the other end of the spectrum we find a libertarian like Philips (1990) who says: “To redistribute some of the power and decision-making authority means to take from those who have earned and produced and to give to those who have done neither”. Another interesting quote: “Zoning, by its very nature, is a violation of property rights, and destructive to human welfare” (Ross & Philips, 2003). A Steering Committee on housing (see www.housinghouston.org), that wrote the report Housing Strategies for Houston: Expanding Opportunities, says about the absence of zoning: “Unconstrained by conventional zoning regulations, Houston has a unique opportunity that no other American city has; it can undertake effective planning not trumped or compromised by existing zoning” (p. 8). What becomes clear is that people, whether they are in favour of or against zoning, have a clear picture of it is and what it does.

Although academics in general in zoning discussions usually do not take as emotional a stance as the frontrunners of the discussion in Houston, they too share the belief that zoning or a lack thereof can determine our environment in a big way. Many scholars, both advocates, opponents and the ones that position themselves somewhere in between (Fischel, 1985; Ellickson, 1973; Siegan, 1972; Berry, 2001; Peiser, 1981), work on the interface between law and economics, which allows them to analyse institutional arrangements and their effects in detail from both a legal and an economic angle. The way both markets and zoning are sometimes approached is relatively essentialist and deterministic.4

In some cases these essentialist and deterministic views on land-use institutions can go as far as to make them almost personifications of the management of land use. Statements like “the market knows best what people want”, “zoning leads to segregation”, “deed restrictions lead to social exclusion” and “zoning protects values of single-family dwellings” can be read and heard on a regular basis. The following quotation of Siegan, talking about Houston, illustrates these observations nicely: “Its land-use experience as well as that of some other non-zoned cities in Texas demonstrates that zoning is neither necessary nor desirable, that its absence does more good than harm. Market forces operate there efficiently and effectively and accomplish that which zoning is supposed to but has been proven incapable of doing” (Siegan, 1983, p. 143). Other more moderate researchers in this field share the same ontological position. Berry (2001), for instance, wants to test the hypothesis that zoning leads to social segregation. He compares Dallas to Houston, two cities with a comparable size, but one with and one without zoning. He concludes that segregation is not significantly different in the two cities and that hence zoning cannot be held responsible for segregation. The argument continues by saying that what both cities have in common is the use of private restrictive covenants to regulate land use. Berry argues that it might well be that those restrictions lead to the separation of groups. This is a moderate perspective compared with others in this discussion, but it also treats institutions like zoning and other restrictions as ubiquitous entities that produce or determine space, not necessarily on their own—their might be other factors—but irrespective of the variety of ways in which they are applied.

What might be concluded from this is that regardless of whether people are against or in favour of zoning or other instruments, they seem to have clear and high expectations of their effects. In Houston, the majority of the people had, and might still have, negative expectations, which led to zoning's rejection on various occasions. However, looking at the archives of the local media, the pressure for public regulation of negative externalities remained. Other bills were passed without much opposition. Archival research and interviews have shown that debates on other land-use ordinances, as dealt with in the next section, were less heated and sometimes almost absent.

Land-Use Regulation in Houston: Dismantling the Market Myth

Zoning is seen by academics, practitioners and citizens, like many inhabitants of Houston, as an interventionist instrument. Economists would call this a Pigovian solution. In other words, following the welfare economic argument, when the market fails, in this case when externalities occur, intervention by the state is applied to internalize them. Lai (1997, p. 234) argues that the discussion among economists should be reframed: “Being pre-occupied with the effect of planning upon private property rights, the economists seldom consider the role of zoning in delineating private property rights and in establishing and enlarging the land market”. What can be derived from this is that a distinction can be made between rules that are regarded as restrictions of private property rights and rules that are seen as means to reassign property rights. Zoning is quite clearly being put under the first category, particularly in Houston.5

Except for zoning, Houston has almost all the other instruments from the development control tool box. Apparently these regulations are regarded as a means for “[…] delineating private property rights […]” (Lai, 1997, p. 234). At the same time, rules that restrict property rights, which many other cities would arrange in a zoning ordinance (see also Philips, 1990), have been adopted over the years or have been implemented to compensate for the absence of zoning.6 I am not the only one to claim this (see also Lewyn, 2005; Kapur, 2004). Lewyn (2005) goes further and argues that: “In fact, Houston regulates land use almost as intricately as cities with zoning by mandating suburban-style low densities, ordering businesses to hide their stores behind an asphalt ocean of parking, encouraging segregation of land uses, and forcing pedestrians to cross wide streets and to trudge through long, intersection-free blocks to go from one place to another”. It is difficult to describe what a zoning ordinance encompasses or should encompass, and actually doing that would reveal an essentialist ontological position. Zoning ordinances can take many forms. But what we can do is to identify land-use regulations in Houston that could well have been in a zoning ordinance in another local authority in the US, or are in another way a response to the absence of zoning. The most important rules have been summarized in Table 1 and are elaborated on below.

Table 1. Houston's regulatory landscape

Type of rules	Rules regarding
Generic rules	Subdivisions (including requirements for streets, sidewalks, drainage and sewerage, and requirements relating to off-street parking, housing density and quality, building heights, open space, set-backs and lot sizes)
	Trees and shrubs
Generic rules for specific land uses	Signs/billboards
	Motels/hotels
	Correctional facilities
	Sexually oriented businesses
	Junkyards
Generic rules for location-specific application	TIRZs
	Manufactured homes an trailers
	Hazardous businesses
	Historic objects/sites
Location-specific rules	Major thoroughfares and freeways
	Flood management
	Deed restricted subdivisions (and public enforcement thereof)

A distinction is made between (1) generic rules, (2) generic rules for specific land uses, (3) generic rules for location-specific application and (4) location-specific rules (4). Generic rules are rules that apply to every location and to every type of development. These rules adhere perfectly to the classical liberal ideal of the “rule of law” (Moroni, 2007). Generic rules for specific land uses are not location-specific and concern the whole jurisdiction, but only for a specific type of development, like the development of hotels. Generic rules for location-specific application is a phrase that sounds paradoxical, but is not. These are rules that can be found in the city's Code of Ordinances, regardless of the specific location. However, they can only take effect after a specific location, or zone, is designated. After designating an area or object, these generic rules have become location-specific. And finally, there are the location-specific rules that are unique for a particular site. This distinction is analytical; some rules contain elements of more than one category.

Generic Rules

Since 1940, for all development, a subdivision plat needs to be submitted that points out how the land will be subdivided. The standards from 1940 were rather minimal but have been extended and made more stringent in major amendments in 1963, 1982 and 1998 (Kapur, 2004). One of the interviewees argued that the amendment in 1963 was a “direct consequence” of the rejection of zoning the year before.

Nowadays, these subdivision regulations include standards for public improvements, like streets, sidewalks, drainage and sewerage, and requirements relating to off-street parking, housing density and quality, building heights, open space and set-backs. Part of the subdivision regulations are also requirements for minimum lot sizes. These lot size requirements affect urban densities. In many other municipalities, densities and lot sizes are controlled through zoning (Mandelker, 2003, Section 5.28). Houston seems to go even further than other cities in regulating lot sizes. Until 1998, the city of Houston required non-detached single-family houses to sit on at least 2250 square feet of land. In 1998, when the last major amendment to the development code was adopted, a distinction was made between urban (within the IH 610 loop) and suburban areas. This was found necessary to allow for higher densities in the core of the metropolitan area. Making such a distinction can be seen as a form of zoning. For urban areas, the lot size requirement for non-detached housing was reduced to 1400 square feet, but now combined with the requirement that developers will have to additionally provide 600 square feet of open space for each lot. In other cities this type of houses may be on much smaller lots, like 647 square feet in Dallas, 560 in Phoenix and 390 in Toronto (Lewyn, 2005). For detached single-family houses, the minimum lot size in Houston is even 3500 square feet in urban areas and 5000 in suburban areas.

Of late, sustainability issues and attention for the environment have been gaining ground. In 2003, Houston adopted a new tree and shrub ordinance (Chapter 33 of the Code of Ordinances) that should improve Houston's livability. This ordinance includes rules on tree protection. In addition, there are tree-planting requirements. For instance, lots that are 5000 square feet or smaller need to have one new or preserved tree, whereas bigger lots must have two or more newly planted or preserved trees.

Generic Rules for Specific Land Uses

Besides the general rules that are used to review any proposed development, there are other restrictions on private property rights related to specific land uses,7 like signs and billboards, junkyards, sexually oriented businesses, correctional facilities, hotels, hazardous businesses, manufactured homes an trailers and more (see for more details Kapur (2004)). Many cities use zoning and the zoning ordinance to separate these land uses from other land uses, most notably housing.

For instance, since 1980 there is a sign code that has been adopted to stop the proliferation of signs that decorated Houston (see Houston's building code). Junkyards are prohibited within 300 feet of a school, church or residence. Sexually oriented businesses may not locate within 1500 feet of any school, church, public park or day-care centre. And it may not be located within 1000 feet of any other sexually oriented business. In addition, in areas in which 75% of the lots are used for residential purposes, these businesses are prohibited. The latter also applies to correctional facilities. In addition, these facilities may not be located within 750 feet of any church, community centre, facility for the elderly, recreation facility, day-care centre, public park and school, and not within 1000 feet of any other correctional facility.

Generic Rules for Location-Specific Application

Businesses that use hazardous materials can only settle in areas that have been designated exclusively for them by the City of Houston. The same applies to manufactured homes, travel trailers and motor homes. These two regulations, for hazardous businesses and mobile homes, can be seen as zoning in its most literal sense, because zones are created and designated for specific uses.

Other zones that have been created are Tax Increment Reinvestment Zones (TIRZ), which have been made possible by Chapter 311 of the Texas Tax Code. This allows for physical and economic improvements for designated areas. Property tax increment funds are used to finance public improvements aimed at addressing inner city deterioration, developing raw land in suburban fringe areas and proactively addressing the decline of major activity centres (http://www.houstontx.gov/planning/economic_dev/tirz.htm#gov_tirz). It is expected that these activities attract investment that then again gives rise to property taxes by which improvements to the district can be financed. The first zone in Houston was established in 1990 (see Tax Increment Financing Registry, State of Texas). In 1998, there were 10 of these zones, and at the moment of writing there are already 22 of them, mainly within the IH 610 loop.

Since relatively recently, there are also tools to preserve Houston's built heritage. In 1995, more than a year after the last referendum on the zoning ordinance, the city adopted a historic preservation ordinance which allows the City Council to designate buildings, structures, objects or sites that have historical, cultural, architectural or archaeological significance. Until 1995, Houston did not have any public protection for historic buildings or sites (Saltzman, 1995).

Location-Specific Rules

Very important for Houston's development and extension is handling traffic properly. Therefore, since 1942 Houston has a Major Thoroughfare and Freeway Plan (http://www.houstontx.gov/planning/DevelopmentRegs/07policy_statement.pdf), which is made annually. It is in that plan that the City identifies sections of roadways (either thoroughfares or major collectors) which are in need of expansion, either by lengthening or widening. This plan is legally binding. It also conditions subdivision plats and the issuance of building permits for land adjacent to the identified roads.

Another issue that asks for location-specific regulation is flood control. Because Houston has experienced serious flooding in the recent past, there are extensive regulations related to flood management. In Houston's Code of Ordinances, there are general rules that apply to floodplains that are indicated on a map made by the Federal Emergency Management Agency. On the basis of that the City requires applicants to elevate their structures, to provide detention on-site or to contribute to a regional storm water detention facility.

The most important instruments for land use control in the absence of zoning are private restrictive covenants. The City of Houston describes deed restrictions as: “[…] written agreements that restrict or limit the use or activities that may take place on a property in a subdivision” (Deed Restrictions Compliance Notice). They are voluntarily entered into. The restrictions are registered in the real property records of the county of Harris and run with the land in order to restrict future owners accordingly. It is estimated (Feagin, 1988; Berry, 2001) that 10,000 deed restrictions are recorded and registered with the county of which two-thirds are for residences.8

Houston has many neighbourhoods that organize themselves around those deed restrictions. Houston is famous for its “master-planned communities”. Moreover, no metropolitan area in the country has more master-planned communities than Houston (www.window.state.tx.us). Some of the interviewees point out that this is because there is no zoning in Houston. Master-planned communities are privately planned sites often with many facilities like schools, malls and leisure accommodations. Some master-planned communities argue (on their websites) that, largely due to the lack of zoning, people feel the need to regulate themselves within a community. These restrictions can be very detailed and restrictive. For instance, they can regard the length of the lawn grass, the hours that garbage is allowed on the pavement and so on.

Deed restrictions are widely used throughout the US, and hence not only in Houston. What makes Houston special is that they are not used in conjunction with zoning and that state laws have been put in place that allow the city to enforce these restrictions. After the rejection of zoning in the 1962 referendum, there was pressure to enhance the power of the local government in another way (Berry, 2001). As deed restrictions were the main instruments for land-use regulation, it was found appropriate that the city would get more control over enforcing these restrictions. In 1965, two new sections (974a-1 and 974a-2) of the Texas Local Government Code, referred to as the Restrictive Covenant Enforcement Acts, were adopted by the state of Texas.

The first section provides cities without a zoning ordinance with the possibility to enforce private restrictive covenants. The City of Houston gets involved in enforcing deed restrictions on issues that regard land use, minimum or maximum setback, minimum or maximum lot size, minimum or maximum size of the buildings, the number of structures and the height of the structures (Deed Restriction Compliance Notice). The Texas Local Government Code prescribes that no authority can interfere with these private agreements, unless at least one covenanter submits an official complaint to the city. If the city decides that the complaint deserves further action, the legal department first sends a letter. This is often enough to stop the violation. But if not, the city will bring the case before the court. If the case proceeds to court, the litigation costs will be borne by the city, and the financial burden on plaintiffs will be eased accordingly (Kapur, 2004). Therefore, citizens are more likely to participate actively in covenant enforcement.

In addition, the State of Texas adopted Section 974a-2 that connects deed restrictions to the building permit. Usually, granting or rejecting a building permit happens independently from deed restrictions. Although a restriction might be violated by a building permit, this is not a consideration that is allowed to be taken into account. The situation in Texas is different from the rest of the US as 974a-2 enables any city of more than 900,000 inhabitants—i.e. on this moment Houston, Dallas and San Antonio—to refuse a building permit if it violates a registered deed.

Apart from the two sections in the Texas Local Government Code that have been discussed above, the State of Texas introduced another alteration for unzoned cities. In general, deed restrictions can only be modified unanimously by the conveners. But for cities like Houston this requirement has been eased, because it was expected that when restrictions could be changed more easily, neighbourhood investments would be stimulated. Therefore, the law now requires that in order to create, extend or renew a restriction, a petition must be signed by owners who own together at least a majority of the total number of lots, or a majority of the total number of separately owned parcels, tracts or buildings, or a majority of the square footage within all the lots in the subdivision (Kapur, 2004).

One of the major arguments that is used against zoning is that it separates land uses by prohibiting commercial activities in residential areas. In Houston, this is done by restrictive covenants in addition to some of the earlier-mentioned ordinances. Moreover, the significant involvement of the city in the enforcement of these covenants leads to separation of uses. Land uses in Houston are only slightly less segregated than in other cities with zoning ordinances, measured by the standards of the sprawl index of Smart Growth America (Lewyn, 2005).

The enumeration of regulations that Houston has despite or because of the lack of zoning is not made to claim that Houston's regulatory practice looks entirely the same, or leads to the same results as in other American cities. What Houston is still missing is a public land-use plan in which various types of land uses are brought together. But what this section shows is that other regulations have been adopted to cover some of the perceived negative impacts of an unzoned city. Therefore, the reality of land-use management in Houston is more subtle than its image. In any city in the US, and in general cities in the western world, there is an inextricable mix of public and private law rules that guide the way land is used. The tone of the debate around zoning does not seem to correspond with Houston's practice. Why are people supporting zoning so fiercely, and why are others objecting it so firmly, while planning with zoning would not look entirely different from the current planning practice? Both proponents and opponents seem to think that planning can and is only carried out by zoning.

Explaining Houston's Land-Use Regulations

Seen from an instrumental perspective, zoning, deed restrictions and markets, as institutional arrangements in general, are socially constructed, as are their outcomes. Zoning (in the US) is not just one unambiguous planning tool, but can take many forms (like e.g. exclusionary zoning, inclusionary zoning, overlay zoning and performance zoning) that can be used and applied by each local government in a large number of ways. To give an example, zoning can be used to segregate land uses and therefore indirectly socio-economic groups, but it can also be used to designate an area for mixed-use development, depending on what politics and society prefer.9

There seems to be more about zoning that leads people to make statements like “zoning is…” and “the market does…”. These personifications—Klein (2000) says: “we defeated zoning in Houston in 1993”—”force” people to take a position, either for or against zoning. Zoning is apparently more than just a tool that is used to achieve a given goal; conversely, zoning has become an end in itself.

Both opponents and proponents have become entangled in a discursive “battle”, in which they both use a similar language, though for different purposes. Until now the opponents “won” the battle. They have been able to patch together an unusual ensemble of minority groups, including a group of black religious leaders, and some ideological groups, including the property rights movement. This proved to be a powerful combination of people with a lot of money—around $700,000—to spend on advertising and television commercials. They were able to turn the polls around in a short period of time and to convince minority groups that zoning could be used against them.

Policy instruments, besides being tools, can become modes of expression of human meaning that constitute identity. These symbolic processes are place-specific and culture-specific (Yanow, 2003). This refers to zoning also, which has a certain meaning attached to it in every state or city in the US (Jacobs, 1999). However, it is not coincidental that Houston is the only big city without zoning. It fits within a broader entrepreneurial political economic tradition. An urban regime has developed in which business elites and the local government work together to increase economic prosperity. The city facilitates the private sector by investing in large urban infrastructure projects and by refraining from restricting the private sector by means of government regulation (Feagin, 1988; Neuman, 2003b). It is interesting to see that in the last referendum neither the business elite nor the city government advocated the rejection of zoning—rather the contrary—but property rights activists and minority group leaders did. However, the rejection of zoning on all of these occasions reinforces and reproduces Houston's status and identity as a “free enterprise city” (Feagin, 1988).

At the same time, I have shown that despite the lack of zoning there is an increasing number of regulations that regulate land use in Houston. What has remained is a continuing demand for public laws that prevent negative externalities in residential areas, mainly pushed by the middle-income groups, who are also the property owners in these residential areas (various interviews). Obviously, the City of Houston is susceptible to the voices of this important part of the electorate. The pressure from these groups has led to some critical junctures for institutional change that received little opposition from the opponents of zoning. This “backdoor zoning” was possible since these designs did not carry the polluted label “zoning”. Following Hajer (1995, p. 49), we could say that discourses do not only constrain, but also enable people to do things that they otherwise would not do.

The majority of the people living in Houston want much of the content zoning can have, i.e. a certain degree of control over development, but many do not like the packaging. The introduction of the various ordinances was felt necessary due to a lack of zoning and was possible only because it was not explicitly associated with zoning. All these ordinances in themselves do not raise much opposition. Not many people are against historic preservation or against regulations that set out the location of hazardous businesses. Adopting and applying land-use regulations seem to be a matter of framing.

In this article, I have tried to demonstrate how discourses shape land-use institutions like zoning. The conclusion can be two-fold. The discussion is brought back to one of a choice between zoning and no zoning at all. But the Houston case shows that the choice is not that simple. There are many forms of regulations that bear some elements of zoning that do not carry the same label and the same connotation. Although there is no zoning, there has been and still is a need to reduce negative externalities caused by real estate development. These externalities emerge because in a city we bring together many types of, sometimes conflicting, land uses. There is a broad consensus on the need to reduce negative externalities. There is more disagreement on how this reduction should be brought about. More specifically, this seems to boil down largely to the names and the symbolic meaning attached to the instruments that do so.

Therefore, the second and more general conclusion is that people who work on preparing, adopting and applying land-use regulations should be aware of the symbolic meaning of the rules, the way they are framed and the emotions that are evoked by that. Emotion is an element that is often overlooked by planners: “[they] need to spend more time and effort studying the role emotions play shaping judgments of … planning” (Hoch, 2006, p. 380). It is particularly important to illuminate the relation between emotion on the one hand and the metaphors, words and images that are used to shape the discussion on the other, not only with regard to plans, but also concerning legal instruments that we use to implement those plans. We need to know more specifically what it is that triggers certain emotions. Knowing this and using this knowledge prevents frustration and opposition and increases the effectiveness of planning.

Acknowledgements

This article has benefited greatly from comments made in discussions with Rachelle Alterman, Margo van den Brink, Cecilia Giusti, Patsy Healey, Peter Hendrixen, Dawn Jourdan, Arnoud Lagendijk, Barrie Needham and Michael Neuman.

Notes

This also counts for related strands of research like economic sociology (e.g. Granovetter, 1985) and old or original institutional economics (e.g. Hodgson, 2004).

Looking at the common division between rational choice, historical and sociological institutionalism (Hall & Taylor, 1996; Alexander, 2005), discursive institutionalism should be seen as the fourth institutionalism (Schmidt, 2005). In this article, I do not pay attention to historical institutionalism. A pragmatic reason is that an extensive review of institutional approaches is beyond the scope of this paper (see e.g. Buitelaar et al., 2007). A more substantive reason is that historical institutionalist approaches are better at explaining continuity than at explaining institutional change. Non-zoning can be seen as path dependent, but at the same time many other planning instruments emerged and changed that cannot be explained solely by the institutional path. Another reason is that although historical institutionalists have added the historical component, by emphasizing the role of path dependency, they follow a similar “calculus” or efficiency approach as rational choice theories do (Schmidt, 2005; Buitelaar et al., 2007).

It is beyond the scope of this article to go into more detail on the nature of discursive-institutionalist theories and methods. This article is not reporting on a detailed narrative empirical research, in which storylines are thoroughly reconstructed. The time scope of the zoning debate is too long for that.

Essentialism is the view that for any specific kind of entity it is possible to specify a finite list of characteristics. Here, it refers to the propensities of zoning. Determinism in this case refers to the view that space is the product of the tool zoning or it alternatives, and therefore ignores or neglects the actions of agents that make zoning, apply zoning or are being restricted by it.

In addition, private property is often perceived as an overarching ownership right and too little as a bundle of sticks that can be taken out (Blomley, 2004).

An example from planning law can be found at the federal level. Although the US do not have a planning act, it does not mean there is no legislation that relates to land use. There are various sectoral laws that deal with related topics like housing, transportation, environmental issues and economic development (Alterman, 2005).

Most of them are to be found in Chapter 28 of the Code of Ordinances.

Harris county (of which Houston is a part) does not keep track of what is recorded there. Many people I have interviewed were confident that this number would exceed almost any city in the US.

In relation to this it is interesting to note what Alterman (1997, p. 227) says about the success of the preservation of the English countryside: “It is due less to land use controls targeted at farmland than to the prevailing normative view in Britain of the desirable relationship between urban areas and their surrounding countryside”.