In most democratic systems, the majority rules — but when it comes to a zoning law in Texas, property owners have a powerful way to put their fingers on the scale.

It’s often called the “valid petition” law and it’s why when a majority of San Antonio City Council members voted in favor (7-4) of an affordable housing project known as Vista Park last month, it failed anyway.

State statute requires a supermajority or three-fourths vote, nine votes in the case of the local city council, to approve a zoning amendment for a property when property owners of more than 20% of the adjacent property are opposed to the change in zoning. No matter how many property owners are within 200 feet, the rule applies.

The rule wasn’t created to block affordable housing, said Councilman Marc Whyte (D10), who voted against the project that would have been located in his district. “The rule is there to give added weight to the property owners that are going to be most affected by a change in zoning.

“… You have people that buy particular pieces of land based upon what is there and what could be around them,” he added. “I don’t think that it’s unfair.”

Legislation that would have reformed this zoning law, authored by State Rep. Carl Sherman Sr. (D-Desoto), died in committee during the last legislative session. The proposed bill would have increased the petition threshold to 50%. At least one other Texas lawmaker might try again during the next session, though it’s still unclear what that effort will look like.

“We’re looking at it,” State Rep. Diego Bernal (D-San Antonio) said, declining to comment further.

Promoting housing stability and affordability for residents is among San Antonio’s top priorities in its draft 89th State Legislative Program — basically a list of policies the municipality will lobby for or against at the capitol.

The next Legislative session starts in January.

“I certainly would support the elimination of the supermajority rule,” Mayor Ron Nirenberg said. “As it has been applied, [it] is an artifact of an era of exclusionary land use and redlining. … Placing a supermajority threshold for the purposes of giving some members of the community an outsized voice to exclude people is, in my view, anti-democratic.”

The voices of current property owners have higher priority under the valid petition law than the potential tenants or beneficiaries of affordable housing. And a supermajority vote takes away some of the deference and power given to council members, he said.

“The elected officials, at the end of the day, have to make the decision and it’s their job to represent the entire community,” Nirenberg said.

That’s why a supermajority requirement is rare.

The only other actions that require a supermajority vote in San Antonio, according to city code, is to designate a property as historic over the wishes of the property’s owner, grant a variance for signage or appoint a city manager. However, the supermajority threshold for the latter is at least 67%, not three-fourths.

Examples across the state show that the valid petition law has interfered with several affordable housing projects, from a single garage apartment, to multifamily projects like Vista Park and acres of single-family homes.

Depending on how many property owners surround a rezoning request, it can be — and has been — blocked by a single owner, said Emily Brizzolara-Dove, policy advisor for Texas 2036, a bipartisan public policy think tank.

Brizzolara-Dove is working on a set of policy recommendations regarding the valid petition law. Like the valid petition reform, a batch of measures related to housing production and affordability received bipartisan support during the last session but didn’t make it out of committee.

“I shout about this issue from the rooftops whenever I have a legislative meeting,” she said. “My hope is that … another crack at it gets filed this session and that it gets further along in the process.”

Imported from New York City

The valid petition statute stems from the first comprehensive, citywide zoning code passed in 1916 in New York City. The Zoning Resolution was passed as a way for Fifth Avenue merchants to keep Jewish tenements, garment factories and poor workers out of their neighborhoods, said Salim Furth, a senior research fellow and director of the Urbanity Project at the Mercatus Center at George Mason University. 

That resolution required unanimous support from the governing body if there was 20% opposition from adjacent landowners.

“They didn’t want Jewish immigrant tailors scaring off their customers,” Furth said. And some New York property owners were “nervous” about what their neighboring property owners would do.

The 20% rule was included to assuage those concerns, he said. “Don’t worry, you’ll be able to protest, and even a small number of people will be able to protest and say we don’t want the zoning change.”

The concept was then adopted as part of a federal, 1920s zoning policy guide for states called the Standard State Zoning Enabling Act.

The stated goal was to balance the property rights of individuals with the need of government to limit building heights and uses “for the purpose of promoting health, safety, morals, or the general welfare of the community,” the act states.

Texas adopted its own version of the act in 1927. Here, the 20% rule applies to property owners within 200 feet of the land in question and requires a three-fourths majority vote.

An ‘invisible’ impact

At least 20 states have some form of the valid petition process on the books. Wisconsin and South Carolina repealed their laws within the past decade, said Furth, who is one of few researchers who have looked into these laws across the country.

The supermajority rule has also been used to block commercial projects as well, but Furth’s research into a dozen Texas cities of various sizes (not including San Antonio) from 2021 to 2022 found it’s more often used against multifamily housing and “Austin is a valid petition hot spot.”

Though it wasn’t collected in time for publication in the policy brief: “Mostly Invisible: The Cost of Valid Petitions in Texas,” co-authored by Furth and C. Whit Ewens, Ewens was eventually able to obtain data from San Antonio regarding valid petition use: 0 in 2021 and two in 2022.

But what that data doesn’t show is the “invisible” impact the law has by pre-emptively shutting down potential development, especially affordable housing, Furth and Ewens said.

“It can be a really large impact, even though the actual incident level seems low,” Ewens said.

That’s because if there’s a whiff of opposition, “people just don’t bring [forward] projects,” Furth said. “Developers aren’t in the business of putting a bunch of time and money into something that’s going to get to a ‘no.'”

In the case of Visa Park, OCI Development and its partners were aware that neighborhood opposition could force a supermajority vote, but “we do not factor the 20% law into the site selection for any of our communities,” co-founder Olivia Travieso said.

“We focus instead on the strength of the site for future residents, land use principles” and Texas’ allocation process for housing tax credits, Travieso said. Vista Park would have been the first subsidized affordable housing complex to offer free, onsite pre-K services in San Antonio.

“It is always our hope that through conversations with the community, residents of the surrounding area will see one of our developments as an asset to their neighborhood that enhances the quality of life,” she said.

This time, that wasn’t enough. Whyte and the neighbors maintained that the project was too tall and would bring too many people to the area, straining traffic. They, and three other council members, claimed that this wasn’t a “not-in-my-backyard” (NIMBY) issue regarding density or affordability.

“It’s unfortunate that even when the developer, the State of Texas, the city staff, the Planning Commission, and the Zoning Commission can all determine that a location would be an appropriate fit for a multi-family development, the current law allows a small percentage of residents within the area to force a supermajority vote from council,” Travieso said. “This puts an inordinate amount of power into the hands of a relative few, and can prevent a good development from moving forward.”

In 2020, Austin Habitat for Humanity tried to partner with a developer to build 33 single-family homes, 17 reserved for lower-income families, on a lot in the Montopolis neighborhood in Southeast Austin.

Detractors accused Habitat of a host of unfounded conspiracies, said Greg Anderson, the Austin nonprofit’s director of community affairs.

“Immediately NIMBYs and groups with misinformation came up and they were like: ‘They’re not really going to be affordable.’ Which, of course, by law, they were going to have to be affordable,” Anderson said. “It’s NIMBYs pretending to be pro-housing. That’s the game … whatever we can do to stop housing while pretending to care about housing.”

Neighborhood groups also claimed it would displace other residents by gentrifying the area. Seven of the 11 council members supported it. The zoning amendment needed nine because of the valid petition law. Ultimately, the developer withdrew its request.

“The developer just folded,” Anderson said. “They’re like: ‘Fine, we just won’t do anything.’ That lot sits [undeveloped] today.”

‘Not a total fix’

Ideally, the valid petition law and the supermajority vote it triggers would just be deleted from state statute to encourage more housing development, Furth said, but there are several ways it could at least be reformed.

A law could increase the percentage of property owners required to trigger a supermajority vote, the three-fourth supermajority could be reduced to three-fifths or the adjacent property owner boundary could be expanded to include more property owners to dilute the power of the few, Furth said.

But those options are “not a total fix and, again, I would rather just get rid of the [whole] thing,” he said.

Amending the statute to allow for some way to ensure neighborhood voices are heard may be part of the fix, said Ewen, a former Austin planning commissioner who sits on the board of advocacy group Texans for Housing.

But there’s currently no checks-and-balance or appeal mechanism and “it’s only a power provided for the negative,” he noted, as there’s nothing that a majority in support could trigger.

Furth is also concerned that a recent court decision regarding rezoning notifications could have far-reaching impacts as cities try to remove barriers for housing development.

The valid petition law is related to a lawsuit that challenged the City of Austin’s comprehensive zoning initiative, an effort to stimulate more housing development. A district court judge ruled in Acuña v. City of Austin that the city violated the rules around notifications when it failed to inform every single property owner that their properties were being considered for rezoning and impaired their right to petition.

“Now, post-Acuña, Austin has to send half a million dollars worth of postcards to
do anything [citywide],” Furth said. And if anyone claims they didn’t receive notification, “you might get sued.”

That’s another fix the Legislature should add to its list by reversing it or having more reasonable citywide notification parameters in place, he said, because the Acuña ruling made it basically impossible to effectively implement citywide changes.

Like the valid petition rule, the Acuña ruling imbalances power and impact between current property owners and future residents.

“The person [who] wants to live in that apartment complex is a family with two kids that wants to take advantage of that onsite preschool,” Ewen said. “They’re the ones that are ultimately affected by this at the midterm and long-term horizon.”