Houston officials are preparing to revise the city’s historic preservation ordinance, a signature issue for Mayor Annise Parker that spurred a prolonged and divisive fight over property rights in her first term.
That contentiousness has never fully subsided in some neighborhoods, most notably the Heights, where redevelopment had seen numerous original structures razed before Parker’s sweeping revisions to the ordinance meant, for the first time, that the city’s Historical and Archaeological Commission could block owners from carrying out alterations to historic structures that it deemed inappropriate. Previously, a denial meant a 90-day wait, after which applicants could do as they wished.
The coming revisions will be modest, city officials say, but related efforts in the works may make the law’s application more predictable.
In the Heights’ seven historic districts, redevelopment has continued through the lens of the historic commission’s interpretation of the ordinance, which some residents and developers complain is arbitrary.
John Nash, a Briton who said he is used to “historic” meaning centuries, not decades, said he did not realize the lot he purchased on Yale was in a historic district until he turned in plans for a four-story, mixed-use building. He intended to house his shipping consulting business on the first floor and live above it.
At the direction of city staff, Nash said he has spent eight months reducing the height twice, shifting the building’s footprint, and seeking approval as a mixed-use project – a term the ordinance does not define – because the residential and commercial categories do not fit. He repeatedly has been denied.
“I feel like a mouse on a wheel just paddling and paddling and going nowhere with these bloody people. We’re doing all the things they’re telling us to do and, yet, every time it’s not enough,” Nash said. “There’s no common sense. If they decide they don’t like what you’re proposing, you’re out. If you look at the ordinances, they’re arbitrary. They can go any way they bloody well want.”
Planning and Development Director Pat Walsh acknowledged the ordinance is subjective, but said 84 percent of applications to the historic commission – two-thirds of which came from the Heights – were approved on their first reading last year and another 9 percent were approved after an initial denial or deferral. Critics counter that, of the 15 denials appealed to the planning commission last year, 11 were overturned.
City Council confronted its first appeal of a planning commission denial under the ordinance earlier this month.
The revisions planned for the ordinance are not intended to win over those who oppose city control over how private homes can be renovated, Parker said. The edits will be minor, she said, intended to clear up ambiguities and improve the process.
“Either you believe in having a historic preservation ordinance that does not allow demolition and does prohibit property owners from inappropriate alterations in that historic district, or you don’t believe in it,” Parker said. “That disagreement is not going to go away. We just don’t want folks to argue about things that are immaterial and we can simply fix with some minor language tweaks.”
Walsh said tweaks under consideration include:
1 Increasing the director’s ability to approve or deny minor alterations, preventing applicants from having to wait for approval at the historic commission’s monthly meetings; an example would be an addition to the back of the home not be visible from the street;
1 Clearing up vague or contradictory language. For instance, the ordinance says new construction projects should match “typical” structures of their type, but does not clarify what “typical” means. The law also says changes to roofs are exempt but, in another section, says roof changes are handled by staff.
1 Barring owners who make changes without city approval or violate their historic permit from receiving tax breaks for renovating historic structures, and lengthening the waiting period for applicants to get new building permits if they commit “demolition by neglect,” allowing an existing home to crumble to make construction of a new one easier.
Perhaps most important, Walsh said, are two related efforts that will not affect the wording of the law itself.
One is a pending study of the dimensions of homes in the Heights districts, providing staff and commissioners more information about how a proposed renovation compares to other homes. The other is Walsh’s commitment to pursue design guidelines for the three largest Heights districts, which generate the most activity.
Sue Lovell, a former council member who pushed for the ordinance and now lobbies on behalf of homeowners and developers seeking to alter historic homes, long has called for design guidelines depicting what property owners can and cannot do.
Interpreting the historic commission’s rulings has been “like trying to nail down Jell-O,” Lovell has said.
“You can hear one commissioner say one thing and then another commissioner say, ‘Well, I don’t think so.’ You can have planning staff tell you, ‘It’s OK, it will pass,’ and then you get up to the commission and they say, ‘No, this doesn’t work,'” Lovell said. “If they were to go in and do design guidelines and give a framework to work in, it takes all that subjectivity away. It makes it all very predictable.”
Any regulatory scheme balances flexibility and predictability, Walsh said, adding the historic preservation program should be more predictable.
“It puts the staff and the commission in a challenging position,” Walsh said. “We owe the commission a greater degree of guidance to assist them in their jobs in making informed decisions on what is appropriate in some of these districts.”
Maverick Welsh, who chairs the historic commission, said he believes design guidelines are needed, but said they will not quiet all complaints. “Anything that can make the ordinance more predictable for people I think is better, but at its core it’s always going to be subjective,” he said. “The opponents want it clear cut, black and white, yes and no; it’s just not that way.”
Tim Kirwin, an attorney who has represented clients before the historic and planning commissions, including Nash, said he applauds the goal of making the ordinance clearer, saying some of the issues he has experienced stem from the vagueness of the ordinance. However, he said, problems will persist if city staff interpret the new language as arbitrarily as he thinks they read the current law.
“If they just read the law and apply what it says, rather than what they wished it said or hoped it said, things would be a lot better,” he said.
‘Intent was good’
Councilwoman Ellen Cohen, whose district includes the Heights and most of the city’s historic districts, said the need for revisions is obvious.
“When you pass something, it looks good on paper but until you really put it in to effect and it has at least a year behind it or more, you don’t see what the actual problems are. That’s where we are now,” she said. “The intent was good, I think there’s some very good things in it, but based on a number of the calls and emails we’ve received, there really needs to be some serious tweaking, and that’s what’s being looked at now.”