Filling stations and small fruit stands
What the zoning fight in Houston reveals about the Texas Heartbeat Act
In 1901 a sea of oil was discovered at the Spindletop oil field. Houston, 80 miles or so away, grew like a desert willow, its population nearly doubling every ten years or so between 1900 and 1930. As it grew it maintained its frontier spirit. There were oil barons and land speculators. Property values were rising. And it was these frontier cowboys—the oil men and the land-flippers—who led the early opposition to zoning in Houston.
With more than 2.3 million people Houston is the fourth most populous city in the United States, and to this day it has no zoning laws. This has made for some memorable planning decisions, including a smoke-belching mortuary in a residential neighbourhood and a skyscraper next to a sex shop.
Between 1929 and the present there have been five major zoning battles in Houston. The conservative view in the city, explains Barry Kaplan, a historian, is that “zoning poses a threat to private property and to personal liberty.” Early arguments from the land speculators focused on infringement of private property rights, though what concerned them particularly was that zoning could burst their inflating property bubble. In the late 1940s owners of rental property joined the fray, worried they’d be zoned out of their source of income. And then there were the anti-communists. Zoning, of course, was “socialized real estate”.
The tactics of these anti-zoners varied. They posted cartoons of zoning inspectors preying on children. They filled council meetings and shouted down the urbanite pro-zoning contingent. But perhaps their most effective argument was a subtle one. In 1937, the year of the second fight, there was growing support for zoning in Montrose, a wealthy Houston district. The residents, wanting the protection zoning would offer, were concerned. There was a proliferation of “filling stations and small fruit stands in [their] midst” they said. They didn’t want this in their neighbourhood. The response of the anti-zoners was that Montrose didn’t need zoning. They could have no zoning law and still get precisely what they wanted with a legal manoeuvre called private deed restrictions.
These restrictions are private contracts that run with the land. They have a racist past: in many parts of the United States and elsewhere they were used to prohibit minorities, primarily black and Jewish people, from purchasing real estate in white and typically wealthy neighbourhoods. Nowadays they are still common only in the affluent parts of Houston, but are used instead to maintain a certain aesthetic (brick or stone exterior only, say), or to mandate the type of building that might be constructed in that area. Drive about the sprawling city and turn into one of the wealthier districts and you’ll see these private zoning laws at work. There you will find no mortuaries or sex shops, and no filling stations or small fruit stands.
In privatizing the law, deed restrictions walk the same line as Texas’s newest abortion ban. This law prohibits doctors from performing abortions following the discovery of a fetal heartbeat, at six weeks or so of gestation. There are also penalties for anyone found to aid or abet an abortion. Since this is contrary to established law in Roe v. Wade, the Texas legislature worked around it. Instead of being enforceable by the government, which would have been swiftly struck down, the law established a civil cause of action. Now, any third party may sue the abortion provider or person aiding or abetting an abortion for a bounty of “not less than $10,000 for each abortion”. It is, in short, private prosecution of abortion.
For each restriction the law is privatized in order to circumvent it. The Texas legislature is self-aware. Knowing the law will come before the United States Supreme Court, they wrote in a section with pre-emptive justifications, like “Texas has compelling interests from the outset of a woman's pregnancy in protecting the health of the woman and the life of the unborn child”. That Texas Republicans (and anti-abortion advocates) believe in the rule of law is a given. The clear evidence is their push for the appointment to the Supreme Court of pro-life justices Gorsuch, Kavanaugh and Barrett. They believe in it, that is, unless it doesn’t serve them. So, to get around established law, they privatized enforcement—a mechanism which has, so far, held up in one Supreme Court challenge and, at the time of posting, is fighting to survive its second challenge.
At the heart of both the Houston zoning conflict and the Texas Heartbeat Act is a common contradiction in the use of power. Self-interest is to blame. In this case it lets wealthy districts benefit from uncluttered neighbourhoods denied to poorer residents of Houston. And it allows Texas Republicans to lean on the Supreme Court’s defense of religious freedom and gun rights and yet also deny women the protection of Roe v. Wade.
But perhaps we might take the comparison one step further. In the failed 1948 Houston zoning referendum only landowners were permitted to vote. So, in response to the Texas Heartbeat Act, the Lonestar State might take a page from Houston’s history and hold a referendum. Only those in the excruciating circumstance of deciding whether they wish to terminate their pregnancy would get a vote. Only these women would get to choose whether anyone who assists them should have a bounty on their head of “not less than $10,000”. An honest belief in personal liberty would require nothing less.
A note from the author:
Hi! If we haven’t met, I’m Jonathan Wright. I’m a writer and lawyer from Vancouver, in Canada. I’ve a small request for you: if you enjoyed this article, please share it! Thanks for stopping by.
Selected bibliography:
“Urban Development, Economic Growth, and Personal Liberty: The Rhetoric of the Houston Anti-Zoning Movements, 1947-1962”, by Barry J. Kaplan: https://www.jstor.org/stable/30238667
Texas Heartbeat Act: https://capitol.texas.gov/tlodocs/87R/billtext/html/HB01515I.htm