Property rights matter to Texans. For more than a century, the Texas Supreme Court has held that the Texas Constitution protects each individual’s right to use and develop his or her property in any way that doesn’t cause a nuisance or harm the neighbors. While other states and federal courts have taken an increasingly narrow view of property rights over the years, Texas courts have stood firm. As a result, housing in Texas has remained more affordable and dynamic than many other states, despite a growing population.
In January, the city of Houston will ask the Texas Supreme Court to abandon this tradition. In Powell v. City of Houston, the city argues that it has authority to regulate private homes for purely aesthetic reasons. Everything from what color you paint your home, to whether you put shutters on your windows, would be subject to government control.
Houston bases its novel claims of power on an old federal court opinion, Village of Euclid v. Ambler Realty. But that “progressive era” opinion has an ugly history and has not been treated as controlling in Texas. Texas courts shouldn’t change course now.
Prior to the mid-twentieth century, most American courts followed the Texas approach. Cities could regulate property only to the extent necessary to deal with common law nuisances or prevent other harmful uses of property. For example, cities could prohibit factories within a certain distance from homes but could not regulate the color bricks you used for your porch.
The first laws that restricted property outside of nuisance restrictions were racial zoning ordinances forbidding blacks from purchasing homes in certain neighborhoods. But the Supreme Court struck down these reprehensible measures in Buchanan v. Warley, concluding that the race of a home’s occupant was neither a common law nuisance nor a harmful use of property, and therefore beyond a city’s control.
Modern land-use regulation for “aesthetics” was largely a response to Buchanan. Immediately after Buchanan, cities adopted ordinances prohibiting smaller homes, apartments, multi-family units, and even rental houses in certain areas. These regulations served the same goal as the recently overturned racial zoning ordinances—keeping certain people out of certain neighborhoods. But they were given a new justification: “neighborhood character.”
A decade later, one of these ordinances made it before the U.S. Supreme Court in Euclid—the case that Houston relies on now. In a shocking reversal of precedent by a newly “progressive” court, the Euclid majority concluded that subjective aesthetic goals like “neighborhood character” were sufficient to justify property restrictions. Property rights, according to U.S. Supreme Court, were held subject to the preference of the majority about what that “character” should be.
But while states like California and New York adopted Euclid into their interpretations of state law, Texas courts continued to apply the traditional approach, finding robust protections for property under the Texas Constitution, rather than its federal counterpart.
In the Lone Star State, the Texas Supreme Court explained, the right to own property and use it as the owner sees fit “is a natural right,” and a harmless use of property therefore cannot be restricted merely because it is “repugnant to the sentiments of a particular class,” even if that class holds sway down at City Hall.
This view of private property rights forms the core of what it means to be Texan. For the city of Houston to win next month, the Texas Supreme Court would have to abandon this traditional approach—an invitation the Court has wisely rejected for a century. The Court should take this opportunity to reaffirm Texas’s unique protections of property.