Kathleen Powell & Paul Luccia v. City of Houston, Texas

Supreme Court of Texas
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No. 19-0689
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Kathleen Powell & Paul Luccia,
Petitioners,

v.

City of Houston, Texas,
Respondent

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On Petition for Review from the
Court of Appeals for the First District of Texas
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SUPPLEMENTAL OPINION ON MOTION FOR REHEARING

The City has filed a motion for rehearing challenging our
holding that section 211.003(b) of the Local Government Code
subjects city regulation of structures in historical areas to the
requirements of Chapter 211. In part, the City contends that
section 211.013 recognizes cities’ ability to regulate the
appearance of property without complying with Chapter 211. We
disagree and therefore deny the City’s motion.
Section 211.013 provides that another statute, local
ordinance, or regulation may impose higher standards than a
regulation adopted under Chapter 211; in that event, the higher
standards control. TEX. LOC. GOV’T CODE § 211.013(a). But this
section does not list regulations of historical structures under
section 211.003(b) among the subjects on which an ordinance could
impose a higher standard. Instead, section 211.013 gives examples
such as height, size of open space, and percentage of lot left
unoccupied—subjects that a city may regulate under section
211.003(a).1 On those subjects, there are other statutes that
authorize a city to regulate without following the constraints of
Chapter 211. E.g., TEX. LOC. GOV’T CODE §§ 212.002, 212.045(a).

Given these overlapping sources of statutory authority for
city regulation, the Legislature included section 211.013 to address
which regulation controls in the event of a conflict. But nothing in
section 211.013 is inconsistent with our holding in Part II.A. that
a city may not rely on its home-rule authority to issue historic-
preservation regulations that do not comply with Chapter 211. As
previously noted, we express no view on whether other statutes

1
Section 211.013 has always tracked the original types of zoning
regulations listed in section 211.003(a). See Act of March 14, 1927, 40th Leg.,
R.S., ch. 283, § 9, 1928 Tex. Gen. Laws 424, 428. Section 211.013 was not
amended when the Legislature added section 211.003(b) to bring historic-
preservation regulations within the ambit of Chapter 211.

2
with different requirements would also authorize the City’s
ordinance. See n. 16, supra.

J. Brett Busby
Justice

OPINION DELIVERED: October 8, 2021

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