Monday, December 29, 2008

Urban Legends: Myths About Houston

In a recent posting titled "Is Houston really Unplanned?" on Market Urbanism, Stephen Smith attempts to debunk alleged myths about Houston and planning. In the process, he actually engages in a much more widespread error--the failure to essentialize. (Here is a good explanation of essentializing.)

Smith cites several examples of land use regulations in Houston, such as minimum lot size mandates and regulations dictating parking requirements for new development. He argues that these regulations, along with the city's enforcement of deed restrictions, refute claims that Houston has developed primarily on the basis of free market principles.

Smith's position is common. Zoning advocates actually used similar arguments in the early 1990's. Zoning advocates were wrong then, and Smith is now.

Admittedly, Houston is not devoid of land use regulations. But the nature, number, and scope of those regulations is significantly different from other cities. There is an essential difference between the regulations in Houston and those in other cities. The permitting process in Houston is relatively fast compared to other cities, and the expenses incurred in that process are also significantly lower in Houston. In other words, developers in Houston can respond much more quickly to changes in the market and do not incur exorbitant costs that must be passed on to consumers.

This is not a justification for the regulations that Houston does have. They are wrong and immoral, as are all land use regulations. But the fact is, Houston has far fewer and much less egregious restrictions on freedom than other cities.

Smith, and many others, attempt to paint a picture of Houston land use policies with a very wide, and indiscriminate, brush.
Boosters of Houston’s land use policy – those who believe that Houston’s land use patterns are the free market, revealed – never mention the restrictive minimum lot size and minimum parking requirements. They mention deed restrictions as free market innovations but fail to see how the city’s prosecutors turn private concerns into public budget drains.

If someone defends Houston's relatively free land use policies, pundits such as Smith seem to assume that those advocates defend all of Houston's land use policies. This is akin to believing that if someone likes one of Clint Eastwood's movies, he likes all of Clint Eastwood's movies (and everything else Clint Eastwood does). This is patently absurd.

As an example, Smith cites opposition to a proposed project at 1717 Bissonnet (the Ashby High Rise) as evidence that Houston does not have a laissez-faire policy towards land use. Smith implies that one particular violation of property rights is evidence that Houston is no different from other cities. He evades the fact that the vast majority of development projects proceed with little or no obstruction from the city.

I have defended the Ashby High Rise many times on this blog and at a panel discussion at Rice University. I have defended the project as a matter of principle--land use regulations are wrong and immoral. I have also addressed numerous other violations of property rights on this blog and elsewhere for nearly twenty years. To claim that "[b]oosters of Houston’s land use policy" have ignored the city's violations of property rights is simply untrue. It may be true of some, but not of all. Smith chose to put all of us in the same boat with a broad generalization that flies in the face of the facts.

The fact is, Houston has fewer land use restrictions than other cities. Those that do exist are less restrictive (in general) than the restrictions in other cities. Those that do exist are less destructive than the restrictions in other cities. Again, the restrictions that do exist are indefensible.

Smith's argument amounts to: Either Houston is completely laissez-faire or it is just like every other city. This ignores the degree of the transgression. This equates a pickpocket with a murderer. Both have violated the rights of another. Both have engaged in evil, but on a much different scale. To equate the two is to diminish the murderer's evil. To equate Houston with cities that erect mountainous obstacles to development is to diminish Houston's greatness.

But painting with a wide brush is not the only error that Smith makes. He questions the validity of contracts:

Another form of planning that Houston has, which is celebrated by the self-titled Antiplanner, is the institution of supposedly voluntary deed restrictions, or private land use covenants agreed upon by the owners of the property under restriction. I’m personally torn over the “libertarianness” of such schemes – are they truly voluntary? Can an individual owner of a property opt out of them once they’ve been signed? What’s the statute of limitations? One thing that makes me suspect that they perhaps aren’t as “free market” as they seem is that though the contracts are between individuals, Houston’s city code allows the city attorney to prosecute these lawsuits at no cost to the supposed victims – fellow property-owners.


Consider Smith's own question-- "Can an individual owner of a property opt out of them once they’ve been signed?" In other words, after a contract has been signed, can one party unilaterally breach that contract? This is nothing more than a desire to invalidate the very concept of contracts. If one party can unilaterally breach a contract, contracts--all contracts--are rendered meaningless.

A contract is an agreement to engage in certain actions over a period of time. If one party can unilaterally breach that contract--that is, declare the agreement void--the contract isn't even worth the paper it is written on.


I agree that the city should not be enforcing deed restrictions--that is the responsibility of those who are party to the contract. But this error on the part of the city does not invalidate the fact that Houston remains freer than other cities. Smith fails to distinguish between minor transgressions and major.

A right is a sanction to act according to one's own judgment without seeking permission from others. In this regard, Houston recognizes individual rights more consistently than other cities. This does not mean that Houston is perfect--it means that Houston recognizes individual rights more consistently than other cities. Where Houston does not recognize individual rights, it is wrong.

But Smith--and those who share his position--uses isolated facts to argue his case and then fails to identify the essence of those facts. He implies that all "[b]oosters of Houston’s land use policy" are the same. He implies that the voluntary and contractual planning that accompanies deed restrictions is no different from zoning or other coercive land use regulations. Both of these implications are false.

When one does not think in essentials, disparate facts can seem very similar. On the surface, deed restrictions and zoning might seem the same--both restrict land use. But the former is voluntary and consensual, while the latter is coercive and mandatory. There is an essential difference between the voluntary and the coercive. There is an essential difference between allowing individuals to act on their own judgment and forcing them to act contrary to their judgment. There is an essential difference between Houston and every other major city in the nation.

12 comments:

Raționalitate said...

I responded at marketurbanism.com, but I figured I'd repost it here...

Admittedly, Houston is not devoid of land use regulations. But the nature, number, and scope of those regulations is significantly different from other cities.

Basically what your argument comes down to is while Houston indeed has some restrictions, the restrictions aren’t as bad as in other cities. This is a very rational and valid argument, but to be honest, you haven’t really given me much reason to believe it, either empirical or anecdotal. But when I actually try to find empirical measures of the freedom to develop, I find Houston as restrictive in terms of density as other cities. For example, in terms of townhouses and allowing them or not, developers in Houston are clearly much more restrained than in other American cities. As Lewyn writes in the paper that I cited:

Houston’s townhouse regulations, unlike its regulations governing detached houses, were significantly more restrictive than those of other North American cities. For example, town houses may be as small as 647 square feet of land in Dallas, 560 square feet in Phoenix, and 390 square feet in Toronto, Canada.

Another empirical point of comparison is minimum parking regulations. If you compare Houston’s to other cities’ (here’re some examples), again, you see that Houston is either as restrictive or more so than other urban areas.

So, I’ve presented my evidence – where’s yours? It’s easy to say that Houston has fewer restrictions, but where’s the proof?

It may be true of some, but not of all. Smith chose to put all of us in the same boat with a broad generalization that flies in the face of the facts.

Sorry about that – obviously I’m generalizing, as there’s no way I can claim to have read every single opinion on Houston’s land use policy. But from what I have read, many people (including many mainstream publications like the NYT) have stated, without qualifications, that Houston does not have land use regulations. I should have qualified my statements with modifiers like “most” or “many,” but frankly, I didn’t think anyone would take it so literally.

…as for the deed restrictions, I think I’m going to have to duck out of defending that statement. While I still believe it, I think the issue is a lot more complicated than you’re making it out to be, so I’ll leave that discussion for another time. (Mostly, though, it just comes down to a matter of degree – to what extent are the covenants prosecuted more than they would be if they were treated like regular contracts? But it’s very difficult to quantify the effects, especially since I’m not in a position to do any original research.)

Brian Phillips said...

Zoning involves comprehensive land use regulation--all land use is dictated by zoning officials. That does not exist in Houston. While particular regulations in Houston may be more restrictive than other cities, one cannot then conclude that land use per se is more restricted in Houston. One must look at the complete picture--that is, all of the city's land use policies. And by that measure, Houston is vastly freer than other cities.

For example, Houston's preservation ordinance is one of the weakest in the nation. The city can do little, if anything, to stop the demolition of an "historic" building. In cities with zoning, preservation rules are typically very stringent.

There are many, many studies and articles that have shown that the primary cause of high housing prices is land use regulations. See New York Sun , Dallas Federal Reserve, Seattle Times, or Glaeser/ Gyourko. The last study is the most illuminating, in that it shows that the cost of construction--i.e., materials and labor--is relatively constant across the nation. The cost of land and permitting, caused by land use regulations and building codes, constitutes the difference.

Raționalitate said...

Cost and difficulty of obtaining permits, though, is a bit deceptive of a measure, as it ignores the people who know full well that their designs will not be accepted. So, while Houston might have a more consistent and straight-forward land use policy than other cities, that doesn't mean that it doesn't have forms that are simply impossible to build, so developers don't even try.

Brian Phillips said...

I fail to see how the cost of permitting is deceptive. It is a real cost that is ultimately passed on to consumers in the form of higher prices.

What evidence do you have that developers simply drop plans for a project? Absent any evidence, such a claim is arbitrary.

But it isn't just the permitting costs that drive up housing prices. Land use regulations limit the land available for any particular use. This decreases the supply and increases the price for that use. Houston doesn't have these restrictions--homes can be build almost anywhere. Areas that were once commercial are often converted to housing or mixed-use. And this is done with little interference from the city. Tring to do that in Manhattan would take years.

Raționalitate said...

I fail to see how the cost of permitting is deceptive. It is a real cost that is ultimately passed on to consumers in the form of higher prices.

Let's say I want to build a 30-story building with no parking (or, say, a limited amount of parking). The building simply won't get built...the form simply won't be available. That's a cost (in terms of lost benefit for consumers and lost profits for developers) that won't show up in any calculation of the costs of development.

Brian Phillips said...

If you want to build a 30-story building with no parking, you would be--to be blunt--a fool. And the market--not government officials-- would tell you this very quickly--you would not be able to raise the capital to build such a project. You would never reach the stage of seeking a permit.

You have cited two examples of Houston having controls that are more restrictive, and have concluded that Houston is essentially no different from other cities. This is akin to you telling me that your mother made you eat spinach and me concluding that she made you take piano lessons, make your bed every morning, and floss. Both are non sequitors--the conclusion does not follow from the premises.

Houston has land use regulations. But to cite two relatively minor examples as evidence that Houston is no freer than other cities evades the nature and extent of the regulations in other cities.

One method for validating a claim--if not completely, at least partially-- is to look for the consequences that would result if the claim were true or false.

Freedom results in greater economic prosperity. This is an historical fact. And it is equally demonstrable that freedom is the cause of economic prosperity. If government controls were the road to prosperity, the Soviet Union would have been an economic powerhouse. Yet, it couldn't feed its own people, as no dictatorship can.

But we don't need to look to the distant past, or even other nations to see this point. We can look at cities on both coasts, where land use controls run rampant and see the consequences--high housing costs, a high cost of living, and middle-class flight.

Houston escaped the housing bubble because housing costs were not artifically inflated by restrictions. Our housing costs are among the lowest in the nation, as is our cost of living. This is not recent, but has been true for decades.

Houston did not follow the lead of "progressive" cities. And our economic prosperity is the result.

Raționalitate said...

If you want to build a 30-story building with no parking, you would be--to be blunt--a fool. And the market--not government officials-- would tell you this very quickly--you would not be able to raise the capital to build such a project. You would never reach the stage of seeking a permit.

So why do these rules exist? Are you telling me that governments are legislating against building forms that wouldn't exist anyway? Obviously a high-rise with no parking wouldn't be much of a seller in Houston even if it could be built, but don't let your hyperbolic example detract from a serious issue – that of parking being oversupplied due to regulations.

But to cite two relatively minor examples as evidence that Houston is no freer than other cities evades the nature and extent of the regulations in other cities.

I would vehemently disagree with you that parking regulations are a "relatively minor" component of land use policy.

And then there's the not-insignificant matter of the roads – each square inch of which is an example of government intervention and control of land use policy. And Houston has some of the biggest streets in America.

Brian Phillips said...

Are you telling me that governments are legislating against building forms that wouldn't exist anyway?

No. I was simply responding to your example.

Obviously a high-rise with no parking wouldn't be much of a seller in Houston even if it could be built, but don't let your hyperbolic example detract from a serious issue – that of parking being oversupplied due to regulations.

I don't dispute that regulations on parking can create an over supply. Nor do I dispute that such regulations are wrong. But your position has been that Houston is no different from other cities, and the facts don't support this assertion.

I would vehemently disagree with you that parking regulations are a "relatively minor" component of land use policy.

I mean relatively minor when compared to the types of regulations other cities have. Mandating the number of parking spaces is much different than mandating the height of the building, the amount of green space, the inclusion of "public art", the type of architecture, etc. The number and extent of the restrictions in Houston--while wrong--do not begin to approach those in other cities.

And then there's the not-insignificant matter of the roads – each square inch of which is an example of government intervention and control of land use policy.

No argument from me here.

Your original article-- the one to which I responded--claimed that Houston is as planned, and by implication as regulated, as other cities. My response was that this is an argument from non-essentials.

Houston has planning--most of it is private planning. This is essentially different from the public planning that accompanies the extensive government regulations in other cities. Private planning is voluntary and consensual. Public planning is coercive and mandatory.

Further, you cited 2 regulations that are more restrictive in Houston than other cities as evidence that Houston is just like other cities. This is a non-sequitor.

This is akin to arguing that since the United States violates individual rights, it is no different from Cuba, Nazi Germany, or Soviet Russia. Such an argument ignores the nature and extent of the violations, as well as the extent of the freedom that does exist.

Raționalitate said...

Such an argument ignores the nature and extent of the violations, as well as the extent of the freedom that does exist.

Isn't that what we're doing right now? Trying to tease out the extent of planning in Houston as compared to the extent of planning elsewhere? I recognize that in some ways (such as Euclidean zoning), Houston is less planned than other cities. However, there are aspects where it's more planned that other cities (such as the aforementioned townhouse and parking regulations).

the amount of green space

Houston had back-door regulations that did this. Before 1999 (I believe), single-family homes had to occupy plots of land at least 5,000 sq. ft. in size. Since most houses won't need all this land, what the regulation does is effectively mandate large yards. Now, this regulation has since been repealed, but that doesn't change the fact that the vast majority of all the city's building stock was built under this more restrictive code.

the inclusion of "public art"

What percentage of buildings in non-Houston cities would you say are forced to install public art that they wouldn't have installed otherwise? Now, what percentage of buildings in Houston would you say are forced to overprovide parking?

Brian Phillips said...

Isn't that what we're doing right now? Trying to tease out the extent of planning in Houston as compared to the extent of planning elsewhere? I recognize that in some ways (such as Euclidean zoning), Houston is less planned than other cities. However, there are aspects where it's more planned that other cities (such as the aforementioned townhouse and parking regulations).

As I have said from the beginning, your position is based on non-essentials. You are equating planning with land use regulations. They are not the same.

Houston has an abundance of planning, a point I have made many, many times (including in my comments to you). The vast majority of that planning is private and voluntary. This is vastly different, and essentially different from the planning in other cities—which is coercive and mandatory.

Planning is the process of identifying a goal and the means for achieving it. A plan without the means of achievement is pointless. In the context of land use, planning needs extensive land use regulations in order for that plan to be implemented.

Land use regulations dictate how a parcel of land may be used. This can take many forms, from prescription to proscription. It can also include mandates on architecture, the preservation of historic buildings, and much more.

Houston does not have extensive land use planning. If it did, we would not be hearing all of the cries—from the Gulf Coast Institute and Peter Brown, to name a few-- for more planning. These cries are simply a cover—once a plan is created they will then demand the means to implement that plan. Which means, more land use regulations. The fact that public officials are calling for a central plan makes it pretty clear that there isn’t one now, and there isn’t.

If there are aspects (and you have only mentioned 2) in which Houston is more regulated, there are also aspects (and dozens, if not hundreds) in which Houston is freer.

To equate land use regulations and planning is to focus on non-essentials. To point to two regulations as evidence that Houston is like other cities is a non-sequitor.

Raționalitate said...

If there are aspects (and you have only mentioned 2) in which Houston is more regulated, there are also aspects (and dozens, if not hundreds) in which Houston is freer.

Actually, I mentioned three. Townhouse regulations, parking regulations, and the streets. Two of which are very important.

And herein lies your problem: weighing which place is more planned than another doesn't consist of racking up all the individual ways the government can regulate land use – you also have to consider the extent to which each actually matters. And a lot of your examples (mandatory public art and historical preservation) are frankly not all that important compared to parking regulations, sizes of streets, minimum lot sizes for attached single family homes, and strict regulations on non-attached single family homes. But you make absolutely no attempt to considering which types of planning are most prevalent and most pernicious, and then show that those are the types of plans that Houston lacks. I'm not asking that you find some way to quantify it or anything, but just pay attention to which ones actually matter in the real world.

Houston does not have extensive land use planning. If it did, we would not be hearing all of the cries—from the Gulf Coast Institute and Peter Brown, to name a few-- for more planning.

Calls for further government control of healthcare are very common, and yet that doesn't change the fact that the government controls half of all healthcare dollars spent and has a monopoly on licensing healthcare professionals. Just because people want more of something doesn't mean we don't already have way too much of it.

Brian Phillips said...

You continue to equate planning and land use regulations. They are not the same.