Hidden in Plain Sight: How Deed Restrictions Thwart Zoning Reform
PAS Memo 129
By Alex Hoffman, AICP
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Imagine this scenario: you receive a development application for a multifamily building in your city. Zoning for the parcel permits multifamily residential, but you discover a deed restriction on the property that prohibits this use. Your department is required to issue the building permit; however, because the use is permitted, meets other zoning requirements, and complies with the building code. You issue the building permit, and construction commences. Then the property owner receives a letter from adjacent property owners: they are being sued for damages because the project violates the deed restriction.
Though it may sound far-fetched, this is exactly what happened in Austin, Texas, after the city council permitted small multiplexes in single-family neighborhoods through its "Home Options for Middle-income Empowerment" (HOME) amendments in 2024.
Many cities have land with deed restrictions that conflict with zoning standards. This blunts the effectiveness of municipal regulations, especially recent zoning reforms to support housing. It also exposes property owners — and potentially planning departments — to the threat of legal action. Planners promoting zoning reform must be aware of the potential conflict between zoning and deed restrictions in their own communities and consider ways to proactively navigate this issue.
This PAS Memo explains these challenges and guides planners in addressing this situation. It first provides background information on deed restrictions, including their history and mechanics of their use, and explains why they can be problematic for planners. It then highlights potential issues with deed restrictions in the context of state-level zoning reform legislation, and shares steps taken by the City of El Paso, Texas, to reveal the landscape of deed restrictions within its jurisdiction and the implications for zoning reform and housing production. Finally, the Memo offers action steps planners can take to analyze the extent of this issue in their cities and address it.
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About the Author
Alex Hoffman, AICP
Alex Hoffman, AICP CNU-A, is the Deputy Director of Planning for the City of El Paso, Texas. Previous to this position, he was the Division Manager of Long Range and Comprehensive Planning and also the Zoning Administrator for the City of El Paso. Prior to his time at the City of El Paso, he served in various planning positions for the City of York, Pennsylvania and the City of Columbus, Ohio. His specializations include zoning, comprehensive planning and urban design.