Introduction to Zoning Codes in Texas
Zoning is a city’s or county’s official set of land use regulations. These regulations govern how a specific piece of property may be used, regardless of what it was previously used for. Zoning is about the "practical purpose," and is based on a public interest or interest group’s needs for a certain area. There are many aspects to zoning regulations, including the type of land use permitted, building height and size, lot coverage and required yards. Zoning regulations also impact the aesthetic, environmental, and infrastructure features of a community by regulating the density of a community, streetscapes, and wetlands.
Although a local government can’t change a zoning ordinance retroactively, the government can "down-zone" or "up-zone" a property. A down-zoning occurs when a land use or density (such as a residential development) is reduced; for example , reducing the minimum lot size of residential districts from two acres to one acre. An up-zoning occurs when the density or land use increases; for example, expanding the definition of "multi-family home" to include apartments. An up-zoning does not automatically grant a property owner more density. The up-zoning simply allows the property owner to seek that additional density through an application, which means that the land use is permissible but the added density is not an approved use until the owner goes through the site plan process. The same principal applies to a down-zoning.
Zoning regulations are one of the primary tools used by municipalities and counties to manage and control growth in an orderly fashion. Texas law gives cities unlimited and unqualified authority to adopt comprehensive and overlay zoning ordinances. For cities and counties with a comprehensive plan, the written plan is the foundation of the zoning ordinance.
What Types of Zoning Codes Exist in Texas?
In Texas, cities and counties have various zoning codes that dictate how and where land can be developed. These codes can range from basic residential and commercial zoning, to more specialized types such as industrial or agricultural zoning. Each of these codes serves a unique purpose and impacts the development and growth of a city in different ways.
Residential zoning is one of the most common types of zoning codes in Texas. It sets standards for residential buildings such as single-family homes, apartment complexes, and other living spaces. For instance, the City of Houston has an entire chapter in its Code of Ordinances dedicated to Residential Development. This zoning code dictates the number of units allowed per acre, the height and bulk of the buildings, and even the type of construction materials that can be used.
Commercial zoning is another prevalent type of zoning code in Texas. Much like residential zoning, it sets standards for commercial buildings, such as retail stores, office buildings, and restaurants. Each city in Texas has its own commercial zoning code that can vary greatly. For example, the City of Fort Worth defines its commercial zoning with several codes, including one for office use and one for commercial and retail use. The standards set by these codes help to regulate the type and scale of commercial development in the city.
Industrial zoning is less common than residential or commercial, but it does exist in Texas. Industrial zoning codes set the parameters for industrial development, such as factories, warehouses, and other types of manufacturing facilities. The City of San Antonio has a variety of industrial zoning codes, depending on the type of light or heavy industrial use. These codes also vary by neighborhood and may overlap with other codes, such as commercial or office use zones.
Lastly, agricultural zoning is another type commonly found in Texas, particularly in rural areas. Agricultural zoning sets the parameters for farming, ranching, and other agricultural activities. The City of Fort Worth has a specific chapter in its Code of Ordinances for Rural Agriculture, which covers agricultural uses in its extraterritorial jurisdiction. This zoning code sets the parameters for animal husbandry, crop production, and other agricultural uses in the city and surrounding areas.
These are just a few examples of the types of zoning codes found in Texas. Each city has its own set of zoning codes that dictate the development and growth of the city. Understanding these zoning codes is essential for anyone looking to buy real estate, trade, or conduct business in Texas.
How Zoning Works in Texas: A Process Overview
The purpose of zoning law is to allocate land use in a way that is intended to further a city’s zoning goals. A city’s zoning goals are set forth in its comprehensive plan, which is guided by studies of land use and other issues. A city generally has four options when it is considering whether or not to change the zoning of a property:
The first three options are likely to be the most heavily used. The least likely to be used in practice is the first option.
When a city chooses to enter into a development agreement, it is typically because the developer is offering to perform actions that the city expects will further a specific goal. For example, it may be that the developer agrees to provide a certain percentage of affordable housing, or to dedicate additional land for public purposes.
If a municipality decides to change the zoning of a specific property (e.g., rezone from single-family residential to commercial), it will typically follow the procedural process outlined below.
First, the municipal planning department will initially review the request with an eye towards whether the proposed zoning is consistent with the city’s comprehensive plan. In most cases, the municipal code requires that any proposed zoning change be in accordance with the city’s comprehensive plan; a proposed zoning change that is not in accordance with the city’s comprehensive plan will usually require the approval of the city council or municipal planning board.
Once the municipal planning department, the city council and/or the municipal planning board have concluded their deliberations, the process is still not finished. The city must also hold a public hearing to allow members of the public to express their views on the proposed zoning change. MuniPal, a municipal ranking service, has noted that Texas law requires the municipality to give advance notice, which can include a public hearing, and consent from property owners who will be materially affected by the zoning change.
Notice is generally given to all properties that are within a 200 foot radius of the subject property. The municipal planning department is also required to give notice to the owners of abutting properties (these are adjacent properties), and to local neighborhood associations, if applicable.
If the property is located in a municipality with a population greater than 5,000, then consent from affected property owners will be required for some zoning changes. Generally, this applies to zoning changes that are initiated by the city, but does not apply to zoning changes that are initiated by property owners.
Texas law allows property owners to object to the proposed zoning change, in writing. If a municipality receives a written objection to the zoning change from owners of 20% or more of the land that is immediately adjacent to or located within 200 feet of the subject property, the municipality cannot vote on the proposed zoning change unless it is approved by a two-thirds majority of the municipality’s governing body.
Common Controversies and Issues with Zoning in Texas
Even with their numerous benefits, zoning ordinances are not without controversy. The competing interests of developers and citizens often result in conflicts over how land-use decisions will be made and who will benefit from these decisions. While the potential for conflict may not be surprising, the unpredictability of representation on zoning boards can be. Frequently, zoning boards consist of volunteers from within the community. These volunteers may or may not be representative of the desires of the citizens affected by the zoning decision. Citizens also have opportunities to speak at public hearings, but it remains possible that they will not be heard. A lack of citizen or community input could lead to what is perceived as an unequal giving of benefits to one group over another. Importantly, this perception may be unfounded, given that Texas law requires zoning decisions to be made with regard to what is in the best interest of the entire community, rather than in the perceived interests of individuals or groups within the community.
Disputes between developers and citizens often center around both the process and substance of zoning decisions. Frequently, citizens criticize a lack of notice and involvement in the zoning decision, even when the necessary notice has been provided. There is little recourse for citizens if a zoning board does not comply with the local ordinances, and inconsistent application of the law by local officials may lead to discontent among either developers or the community. Another source of conflict exists in appeals. Decisions that do not favor a developer can be appealed to a district court; cities may also appeal decisions made in favor of a developer, though this is less common.
For many communities in Texas, the most contentious debates over zoning occur in fast-growing areas. The amount of growth in Texas’ economy has produced extensive urbanization in certain parts of the state. As more people move into the Houston area, for example, the city has expanded rapidly and annexed additional land that was previously part of smaller neighboring municipalities. Opposition to such growth has come from many quarters, including those concerned with traffic congestion, schools, and infrastructure. While proponents argue that development is needed to increase a city’s tax base, opponents often believe that "overdevelopment" may change the character of the community and potentially lower property values by increasing crime and overcrowding. The resulting debates can be intense. How these debates are settled can create uncertainty surrounding development in the affected areas.
Zoning ordinances can have lasting impacts on the communities they serve. Over time, the zoning decisions made for one community can lead to transit decisions that affect other communities. Zoning decisions may also affect local or even statewide economies. In short, zoning decisions may have consequences that reach far beyond the political boundaries of a municipality.
Exceptions and Variances in Texas Zoning Law
Variances allow a property owner to deviate from a zoning regulation or requirement that the owner proves is causing them a hardship. This allows for some flexibility in enforcing zoning regulations and prevents unfair treatment of any property owner.
Having a variance doesn’t mean the property owner is exempt from complying with other restrictions in its zoning district—only those related to the variance. In the city of San Antonio, an applicant must show that the variance will not allow collateral use of the land, will not prematurely extend the boundaries of the district, and fulfills at least one condition of the following:
In Texas, an applicant must prove that their situation falls under one of the categories in a zoning ordinance in order for their variance request to be considered . Because a variance is a privilege, not a right, it is more likely to be granted if the request meets the criteria specified in the zoning ordinance (as opposed to being based on the personal needs of the property owner) and there is a direct connection between the requested variance and the hardship it would alleviate.
Variances should not be used to grant relief from conditions unrelated to the variance standards in the ordinance. While no two properties are exactly alike, zoning ordinances provide uniform regulations and exceptions for typical and predictable situations. That’s why the ordinance committee may take a hard look at a request that is based on noninformational factors that could impact future projects as well.
One other important point about variances is that they follow the property and are not based on the specific owner, so they can pass to a new owner if the property is sold.
How Zoning Affects Real Estate in Texas
Zoning laws go a long way in determining the amount of open land available for development in Texas municipalities, as well as deciding which parts of those municipalities will be set aside for specific types of buildings. For instance, recent revisions to zoning rules in Dallas have accurately mapped, identified and designated parts of the city as reserved for commercial or industrial development, and Houston has made real estate investment opportunities relate almost exclusively to the availability of proper zoning approval for changes in land use.
When viewed from the angle of real estate investment, the question of whether a property is zoned as agri, commercial or residential influences multiple factors, most of which are taken into account when an investor or owner looks for a property to invest in or build upon.
A large tract of land located in a metro area could be completely useless for building a home, yet worth double the price of a similar-sized property on the outskirts of an urban area with plenty of room for new construction. A piece of land located next to a shopping center should yield a fairly consistent sales price across all zoning types, but if that same land were located in another area with no access to public roads, that value would drop significantly. In this example, the location of a property is more important than what it is zoned for.
Properties that are zoned as residential usually have lower tax rates than commercial or industrial zoning designations. Because of this, some communities may decide to tax land differently in order to encourage development. Texas law allows municipalities to agree to certain tax rates set by other municipalities in hopes of building up an entire area, but the law does not allow these agreements to last more than 25 years.
The availability of public transportation, and how accessible properties are to the public, has increased in importance over the past decade. As people moved outside of urban areas to escape the expense of living downtown, they became burdened with the expense and delays caused by millions of cars attempting to travel the same roads every day. As a result, many cities in Texas and across the nation have decided to invest heavily in public transportation infrastructure, and many municipalities have made zoning concessions to accommodate those plans.
Much in the same way, communities have extinguished traditional zoning plans and replaced them with mixed-use development projects. These do away with the need for having a zoning board approve any proposed changes to current zoning regulations. Communities across the state have built new, walkable neighborhoods, both residential and commercial, that include access to everyday services. Overall reductions in cars have also spurred an increase in bike trails, storage facilities, and smaller properties built upward rather than outward.
While traditional zoning regulations are still in place in Texas, the need to accommodate change is becoming ever more prevalent. Many areas across the state have adopted some form of mixed-use development plan, often in response to market forces. New construction around the state reflects an attitude of adaptive re-use, where old properties are torn down and replaced with new structures designed for a different use.
For example, recent developer interest in building on land near the borders of Dallas’ 635 Loop have led to significant planning efforts to redevelop several blighted areas. However, the impact of zoning regulations on the real estate market in Texas is not yet fully understood, as much of the current zoning plan is still in the early stages of implementation. New developments that restore an area to its original function, as well as new infrastructure built to accommodate the realignment of zoning regulations, could still require several decades to be fully realized.
Notable Changes and Future Developments in Texas Zoning Laws
States and municipalities constantly review and often modify their zoning laws as land use dynamics change and develop over time. For example, a 2014 bill introduced in Texas by State Representative Jonathan Stickland is a "local government version of the fast-track, national legislation to permit the establishment of droneports in commercial zones" to accommodate expected drone deliveries in the future. The bill establishes local permitting requirements for unmanned aircraft systems "droneports" located "no less than two miles from any public airport." Dominican Republic native Daniel Martinez’s "Skyport" concept droneport design won the Design Museum Boston’s 14th annual Ideas Competition in 2015. By 2016, the U.S. Federal Aviation Administration (FAA) had not yet approved residential deliveries and air taxi services, but these services are permitted in China and are predicted by Bloomberg to generate $17 billion in revenue each year by 2040.
On September 15, 2017, Governor Greg Abbott signed into law, House Bill 3167 (HB 3167), which took effect immediately. HB 3167 amended Texas Local Government Code Section 211.004, to provide that "a municipality with a zoning or subdivision regulation that has not been reviewed or amended in the 15 years preceding the date of the application for a [specific] permit shall hold an open meeting" to discuss any proposed amendment to that regulation, "if the [municipality] has not held an open meeting to discuss the regulation during that period" . HB 3167 also provides that a municipality governing a municipality with a population of less than 15,000 is not required to hold an open meeting "to review a development regulation that is based on, carried forward, or codified in an ordinance or order if the municipality complied with the requirements of this section when it adopted or updated the original regulation or an amended regulation". The bill does not require a municipality holding an open meeting to amend a specific regulation, to readopt a regulation, or to amend its zoning regulations in any way.
In 2018, Harris County voted to extend the existence of certain land use restrictions "that apply to areas along waterways in the county" for another 25 years. The boundaries of the "Restricted Areas" currently consist of 306 square miles throughout Harris County. The "Restricted Areas" are mostly low-lying areas near different waterways including lakes Galena, Livingston, and Houston Ship Channel. In September 2018 Harris County Commissioner R. Jack Cagle (R-Precinct 4) ordered a work improvement team to explore ways to facilitate the development of economically distressed properties and to examine inequities in the county’s land use restrictions.