Overlapping Ordinances Heights

A 25,000-square foot property at the southwest corner of 10th 1/2 Street and Studewood Street was recently sold to a developer after it was re-platted, despite a Special Minimum Lot Size Area ordinance that nearby homeowners thought would prevent such a re-plat of residential lots. (Photo by Adam Zuvanich)

When she voted in favor of a Special Minimum Lot Size Area (SMLSA) ordinance in 2019, Elizabeth Nemec thought she was helping to protect her slice of the Heights from further commercial development in a mostly residential area. Such ordinances serve as zoning mechanisms in a city without zoning laws, allowing homeowners to restrict land use in their immediate area while ensuring that new home construction fits with the character of existing structures.

But earlier this year, Nemec found out that within the designated eight-block area, where all vacant, unplatted lots are required to be used for single-family homes per the SMLSA ordinance, that the Houston Planning Commission allowed three residential lots to be re-platted in 2020 as part of an unrestricted reserve. That means the land can be used for commercial purposes or multi-family housing, such as an apartment complex.

After Nemec and about 65 percent of her neighbors voted in favor of the SMLSA ordinance, but before it was approved and turned into law by the Houston City Council, the city’s Planning & Development Department, in consultation with the city’s legal team, determined the measure is superseded by a similar 2004 ordinance that restricts lot size in that part of the Heights but not land use. That leaves the newer ordinance ineffectual, at least for the time being.

“That was not communicated to any of us that were voting for it,” Nemec said. “It made us feel a false sense of security.”

The three residential lots and one commercial lot that were re-platted into a 25,000-square foot unrestricted reserve, at the southwest corner of 10th ½ Street and Studewood Street, was sold earlier this summer to a developer who said he plans to use the property for a three-story commercial building that will be a mix of retail and office space. That eases the concerns of Nemec, who said she feared the land would be used for something like the seven-story storage facility that is going up nearby.

But she still views her experience with the SMLSA application as a cautionary tale, and the case prompted the city’s planning department to amend its policy regarding SMLSA applications. City planner Abraham Zorrilla said the department is no longer accepting SMLSA applications with geographic areas that overlap that of an existing ordinance, unless the older ordinance is first rescinded.

According to Zorrilla and Jennifer Ostlind, the assistant director of community and regional planning for the department, the city began allowing property owners to submit Special Minimum Lot Size Block (SMLSB) applications in 2002. That’s the type of ordinance that does not restrict land use and was determined to supersede the SMLSA measure, which was introduced by the city council in 2007.

Prevailing opinion

Ostlind said the city’s legal department determined the older ordinance prevails because of the city council’s 2013 amendment to Chapter 42 of the local government code, which says Special Minimum Lot Size ordinances will remain in effect until they expire or are rescinded by impacted property owners. There are more than 200 such ordinances in the Heights, with the older SMLSB ordinances expiring after 20 years and the newer SMLSA measures in effect for a period of 40 years.

Ostlind acknowledged that the applicant for the SMLSA ordinance in 2019, Heights resident Grant Sovereign, was not told about the effect of the previous ordinance before he and his neighbors voted on the newer measure. In a March 2020 email to Zorrilla, which was obtained by The Leader, Sovereign wrote, “When I started this process I was told that the new designation would supersede the old. … I feel like I have lied to everyone I told during the process that this petition would protect their property.”

Ostlind said Sovereign and neighborhood leaders were informed about the overlapping ordinances, and how they would impact each other, when the planning department discovered the issue. She added it was a “unique” situation.

“We can always do better at getting information out,” she said. “So we will do everything we can to make sure people know that if they are going to be in an overlapping area, that there’s a block (ordinance) that supersedes the area (ordinance), we will try to make it more clear what the process is to undo it.”

In an Aug. 4 letter to property owners impacted by the overlapping ordinances in the Heights, Zorrilla outlined the process for having the older measures rescinded, which requires the support of at least 67 percent of affected property owners. The appropriate form is available online at https://www.houstontx.gov/planning/Neighborhood/docs_pdfs/SMLSB_rescind.pdf.

Sovereign said in an email this week he thinks newer Special Minimum Lot Size ordinances should supersede older ones, in part because there is a greater threshold for having them rescinded than there is for implementing them in the first place. The older block ordinances require at least 51 percent support from impacted property owners, according to Zorrilla, while the newer area ordinances require at least 55 percent support.

Mark Williamson, president of the Greater Heights Super Neighborhood Council and the land-use chair for the Houston Heights Association, said he also thinks the newer type of ordinance should prevail because it comes with protections for single-family residences in addition to controlling lot sizes.

City council member Abbie Kamin, who serves the Heights as part of District C, said she is “extremely disappointed” that the SMLSA ordinance championed by residents in 2019 is being overridden.

“Special Minimum Lot Size protections are one of the few tools available to neighborhoods for their preservation,” she said. “While council offices do not have control over legal decisions like what happened here, it brought to light this loophole. I am working with the Planning Department to notify areas with overlapping SMLS designations that could leave them vulnerable to re-plats, and we’re also trying to clarify the application process to make sure these types of protections are not lost.”

Under transformation

Nemec and Sovereign said they also took issue with how the 2020 re-plat of the Heights property was handled by the Houston Planning Commission, which did not notify Sovereign or any other property owners before approving it. Ostlind said notification was not required under Chapter 42 because the lots had never been restricted to single-family use – even though Sovereign and his neighbors were under the impression the lots were in the process of being restricted as such.

Ostlind said the general public was notified through the planning commission’s bi-weekly plat report, which can be accessed online at https://www.houstontx.gov/planning/Publications/, although community members were not given the opportunity to speak about the issue before the commission. The re-plat was scheduled to be considered during a meeting on March 19, 2020, Ostlind said, but it was cancelled because of the local onset of the COVID-19 pandemic.

Ostlind said state law requires the planning commission to take action on all plat applications within 30 days of their submittal, so the commission ended up approving all applications on the March 19, 2020 agenda, subject to staff comments. She also said the commission received two emails in opposition of the re-plat that were kept on file – from Sovereign and Williamson.

“There’s a difference in the right thing to do versus the legal thing to do,” Nemec said. “I understand that. It’s just frustrating.”

Adam Chunn of Yawning Interests, LLC, which purchased the property early this summer, said he would not have bought it if it had not been re-platted by the previous owner, listed as Wayne Crane and Twyla Davis on the Harris County Appraisal District website. Chunn also said he outbid another developer who wanted to use the land for a gas station.

Chunn said the existing buildings on the land – four old houses, including one on the corner lot that previously housed the Hello Lucky Life boutique – are derelict and will soon be torn down. He does not yet have concrete plans for the future of the property, he said, but envisions a three-story structure with a “quirky, walk-in shop” on the bottom floor as well as ground-level parking and office space on the top two floors.

Like many of his new neighbors, Chunn said he is opposed to the towering storage facility being built one block to the north.

“I bought into the Heights property because the Heights is a gorgeous area, and I’m not looking to make it ugly,” Chunn said. “I see that area as a growing commercial corridor that is high-class, and I want to join into that class.”

Nemec said she was “so relieved” to learn of Chunn’s intentions. But she still wants to inform other Heights homeowners, who might be considering their own SMLSA applications, that their intentions could potentially be thwarted by another ordinance that is decades old.

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