In our constitutional system, individuals have rights and governments have certain powers to protect those rights and to promote the common good. When local regulation unduly interferes with individual property rights, it is appropriate for the sovereign state government to act.
From exceptionally high lot-size regulations to impossible land setback requirements, and other overly-burdensome constraints, Texas municipalities have driven the cost of owning property to historically high levels, with regulatory burdens that severely constrict development—especially housing. This hurts the state’s economy and workforce as well as property rights. It is appropriate for the Texas Legislature to limit local governments’ excesses to preserve statewide policy goals and individual rights.
Constitutional Framework
In our system of state/federal dual sovereignty, Local governments are “creatures of the state”—that is, they have no independent status or authority other than those the states grant or limit. As the U.S. Supreme Court noted long ago, municipal corporations are “political subdivisions,” and it is in the “absolute discretion of the state” to confer, limit, modify, or withdraw any powers with respect to local government.[1]
Texas local governments are extremely important, of course, especially in addressing purely local issues, where they may have unique knowledge and ability to respond to local concerns. Texas, like most states, has delegated much of its police power authority to regulate for the general welfare to chartered municipal corporations (cities) through the concept of “home rule.”
But home rule is not a blank check. In granting this power, Article XI of the Texas Constitution makes clear that any exercise of municipal power is “subject to such limitations as may be prescribed by the Legislature,” and that no local law may contain “any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”[2]
In other words, state law might “preempt” local laws if they conflict. One way this commonly happens is that the Legislature has set forth a different set of rules on a certain subject. For instance (among hundreds of examples), the municipal zoning power is delegated in a separate enabling act, which cities must follow specifically despite their general home rule.[3] Another way state preemption can happen is when a local regulation conflicts with a state law on the same subject or policy area, such as economic development or business regulation—or the statewide need for affordable housing—the state’s law necessarily prevails.
The Legislature Should Act to Promote Housing and Protect Property Rights
While local regulation is well-suited for purely local issues, it can sometimes be inconsistent with, or even impede, statewide policy objectives or individual rights, especially in areas like land use and housing. In such cases it is appropriate for the Legislature to step in.
It has done so hundreds of times over the years. Two recent examples in the land use area include 2019 legislation to restrict cities’ power to dictate masonry or façade characteristics, which had had the effect of raising the cost of homebuilding and ownership,[4] and 2021 law amended the Zoning Enabling Act to limit the power of municipalities to force property owners into a historic district—and the costs of excessive design mandates—against their will.[5]
Texas has an affordable housing problem. And this problem is of a statewide policy imperative that transcends local boundaries. Local governments too often have unduly onerous restrictions that limit development and contribute to artificially raising the cost of housing to the current record levels—excluding potential homeowners, threatening property rights, and hurting free enterprise and the statewide economy.
A statewide legislative solution will provide more consistency and predictability, and help simplify the overly-complex regulations that vary from locality to locality. A smart, uniform approach is needed to standardize housing policy in areas like lot size requirements, accessory dwelling unit regulations, and help streamline the permitting process.
Most importantly, a Texas solution to our affordable housing crisis will help promote two central objectives for our state government: to make housing affordable, and to protect individual rights. In this session, the Legislature can act to make the American Dream more accessible for Texans.
[1] Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).
[2] Texas Constitution, Art. XI, sec. 5.
[3] Tex. Local Government Code ch. 211.
[4] Texas Government Code sec. 3000.002 (2019).
[5] Texas Local Government Code sec. 211.0165 (2001).