The Fifth Circuit Court of Appeals held that esthetic regulation of the appearance of property may constitute a regulatory taking under the Fourteenth Amendment. Money v. City of San Marcos, 2025 WL 429980 (5th Cir. 2025). The façade of the home in an historic district had the initial (a “Z”) of a prior owner who was associated with the Ku Klux Klan. The current owners wished to remove the emblem and sought permission to do so from the city’s historic commission. When the commission denied their request, they sued, claiming a taking of their property without just compensation.
The home is in an historic district but the home itself is not designated as an historic home. The historic district regulations prohibit altering any visible portion of the property without consent of the historic commission, which it refused to give in this case. The homeowners argued that the ordinance requirement that they seek permission before making any visible changes to their home violates the U.S. and state constitutions.
The Fifth Circuit argued that this case was identical to the Loretto case where a local law allowed a cable television company to place lines and a box on a landlord’s building. In this case, the symbol was placed by a prior owner but the court viewed the law as requiring the house to be occupied or invaded by an object they did not install themselves and did not want. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), The court noted that, as in this case, the cable box in Loretto had been installed prior to Loretto buying the building.
The court also held that regulation of property for purely esthetic purposes violates the Texas Constitution, citing Spann v. City of Dallas, 235 S.W.513, 518 (Tex. 1921) and Lombardo v. City of Dallas, 73 S.W.2d 475, 476 (Tex. 1934). The federal court viewed itself as without power to ignore these old precedents. Whether the Texas Supreme Court would agree today is unclear.
Some zoning regulations may be justified by reference to safety and comfort but others might well fail under the rule that “purely esthetic” regulations are invalid. While that is not the law under the federal Constitution, it may be the law in Texas. It appears, however, that regulation for historic preservation purposes is not “purely esthetic” and thus might survive under this approach.