Heights Milroy House

The Heights East historic district includes several historic homes, such as the Milroy House, built in 1898 at 1102 Heights Blvd. (Photo by Adam Zuvanich)

The future of architectural character in much of the Heights neighborhood had been hanging in the balance for five months.

Late last week, proponents of historic preservation in the local community and all across Houston breathed a collective sigh of relief.

The Texas Supreme Court issued an opinion June 4 that upheld two lower court rulings in favor of the city and its Historic Preservation Ordinance, which governs building requirements in 19 Houston neighborhoods that have been designated as historic, including nine subdivisions in the Greater Heights. Two Heights homeowners had challenged the legality of the 26-year-old ordinance, claiming it constitutes zoning, which is a community planning tool that violates the city charter.

Oral arguments were made before the court on Jan. 5.

“I am very happy to hear that the Texas Supreme Court upheld the Historic Preservation Ordinance,” said Houston Heights Association president Sharon Dearman, whose organization serves residents and businesses in the area. “The history of our community needs to continue to be preserved.”

The opinion issued by the state’s highest court, written by Justice J. Brett Busby, said the city’s historic-preservation regulations do not violate the city charter because they are not land-use regulations and do not fall under the ordinarily held definition of zoning, since they apply only to a small number of Houston property owners and because different historic districts have different regulations. Busby also wrote that the city’s ordinance does qualify as a zoning mechanism under Chapter 211 of the Texas Property Code, but that the city had met all the requirements outlined in the code by state legislators.

The court also issued a concurring opinion, written by Justice Jane N. Bland, that reached the same legal conclusion but with some different reasoning. Bland wrote that the city’s historic preservation ordinance does outline land-use regulations, adding that it “stands perilously close to the line of traditional zoning.”

Matthew Festa, a professor at the South Texas College of Law Houston who represented the two Heights homeowners who filed the lawsuit, Paul Luccia and Kathleen Powell, said they had a mixed reaction to the court’s opinion.

“Of course my clients are disappointed, because the decision did not go our way, and we are concerned that some of the parts of the decision leave private property rights less protected than they ought to be under Texas law,” Festa said. “However, the decision does provide some important clarity. In certain ways it is helpful to ensuring that local governments have to abide by the limits of state laws and city charters, especially when it comes to private property rights.”

Sara Bronin, a Houston native and University of Connecticut law professor who wrote an amicus brief on behalf of the city, called the court’s opinion a “total victory for the city” because it upheld the legality of the historic preservation ordinance on both a municipal and statewide level.

RELATED: City's preservation ordinance faces legal challenge

The ordinance, which first was passed in 1995 and strengthened with enforcement mechanisms in 2010, gives property owners the ability to petition to have their neighborhoods designated as historic. Subsequently, within those historic districts, there are protections for landmarks and archaeological sites and property owners must apply for “Certificates of Appropriateness” for any building renovation that is beyond ordinary maintenance and repair.

Minnette Boesel is the chair of the Houston Archaeological and Historical Commission, a volunteer organization whose board members are appointed by the mayor and city council. The commission processes applications for Certificates of Appropriateness and makes recommendations to the city council regarding the designation of historic buildings and districts.

Boesel said the commission was “very excited” to hear the Texas Supreme Court’s opinion, which protects the historic-preservation guidelines that apply to roughly 7,500 structures in Houston, including about 2,000 in the Heights East, Heights South and Heights West historic districts.

“Our goal as a commission is basically to help preserve and conserve the quality, character and fabric of Houston’s tangible history,” she said. “As a result, it adds economic value and promotes our city. … It’s also sustainable, because you’re maintaining and keeping materials within the structure.”

David Bush, the executive director of Preservation Houston, said he was relieved that the state’s high court upheld the rulings by a Harris County court in 2017 and a state appellate court in 2019. He said he had been concerned that part of the city’s historic preservation ordinance, or the ordinance in its entirety, would be nullified.

The lawsuit by Luccia and Powell was initially filed in 2014.

“It’s nice not to have that hanging over our heads,” Bush said.

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