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Legal Commentary

: Prawfs

Deed Restrictions

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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I was in Houston earlier this weekend and through the steamy air (and between BBQ and Bluebell), I saw some signs that made my tired legal eyes pop. Some Houston neighborhoods have signs with the name of the neighborhood in the median of the major thoroughfares when one enters the neighborhood. The signs for several neighborhoods also announced "DEED RESTRICTIONS ENFORCED." Could this mean what I fear it means?!! What sort of restrictions are being enforced? No blacks? No Jews? No Mexicans? No Irish? No Catholics? Or is this just about maybe, uh, private building restrictions?

I assumed the worst until a Google search brought me to this Houston municipal webpage. It seems that because Houston does not have any zoning, the city takes an interest in enforcing deed restrictions to effect zoning. So maybe this is the city's way of announcing that it is doing backdoor zoning. It's a very weird way of choose-your-own-adventure government, but maybe it fits with the Texas libertarian ethos.

Still, even if the signs really do refer to zoning issues, I wonder if the signs might still be a problem because of the way anyone not familiar with Houston land use issues would perceive them. If I were moving to Houston, I would immediately rule out living in any neighborhood with a "Deed Restrictions Enforced" sign because I would think that it was a "restricted" neighborhood where I was not welcome.

Given the history of deed restrictions to effect racial segregation, Houston municipal signs seem very troubling to me. The closest analogy I can think of is a Southern diner with two lines roped off, one of which is labeled "Whites Only," to designate it as a line for cholesterol conscious people who want egg whites, not yolks. But there's no state action there (maybe a government run cafeteria?)

Why announce public enforcement of private zoning restrictions in an oblique way on neighborhood signs, but only in some neighborhoods? It'd be really easy for someone to get the wrong message--that is, if it really is the wrong message.

Full post as published by Prawfs on May 27, 2008 (boomark / email).