Lawsuit filed challenging Austin’s land development code rewrite

Austin

Austin (KXAN) — The day after Austin’s City Council approved the first of three required votes to overhaul the city’s land development code, a lawsuit has been filed by nineteen Austin residents challenging the city’s efforts to do so. 

The code defines the rules for what and where you can build in the city. It has not had a major overhaul in three decades. This current process is the city’s latest attempt to overhaul the code.

The first reading vote on the land code rewrite was approved 7-4 Wednesday with Council Members Kathie Tovo, Ann Kitchen, Alison Alter and Leslie Pool voting no.

A lawsuit was filed Thursday in the Travis County District Court against the City of Austin, all the Austin city council members, and city manager Spencer Cronk. It orders the city to recognize Austin residents’ protest rights under state law.

During a meeting of the Austin City Council, Council Member Kathie Tovo points out potential zoning impacts to her district under the proposed land development code rewrite. (KXAN Photo/ Alyssa Goard).

The release from the attorney behind this suit says the state’s mandated protest rights require a 3/4 vote of the entire council to rezone the owner’s property or nearby property, as long as the owner files a valid protest petition. The lawsuit is asking for a declaratory judgment that Austin residential and commercial property owners have these rights under the city’s proposed revision of the land-use code.

Additionally, the suit asks for a declaration that the city didn’t give proper hearing notice, which would void the recommendations compiled by Austin’s Planning Commission on this code rewrite and the council’s vote Wednesday on the proposed code. Both the Planning Commission and council have been working for months on these policy decisions which the suit intends to nullify.

Attorney Doug Becker who represents the plaintiffs explained that the lawsuit claims the city hasn’t followed the Texas Local Government Code during the process of revising the land code.

“There was supposed to be notice to all citizens who are landowners before the planning commission made its recommendation to the city council,” Becker said. “There was not notice, but in fact, not only was there not notice but the city actively told citizens they didn’t have a right to file protests.”

If the court sides with his arguments, Becker said that his plaintiffs will ask that, “the city would have to start over [with the land code rewrite].”

“It’s not that this would be a huge delay,” Becker said. “But they’d have to start over with notice to all the landowners in the City of Austin before going to the Planning Commission to get approval and then require a three-quarters supermajority vote with the council, that’s what we want the court to tell them. If the court thinks that we’re wrong, then I guess the city can proceed with what it’s doing and the way it’s doing it.”

Becker explained that the plaintiffs filed the lawsuit after the council’s first reading of the land code revision to get the process started quickly.

“I think everyone agrees, the city and the plaintiffs, that this is a case where a court is going to have to decide what’s right and what’s wrong, the sooner we get that process started, the sooner we get it finished,” he said. “And I think when it is finished and we have a definitive answer, that’s going to be good for everyone.”

In a statement on Thursday, a City of Austin spokesperson said:

“The City of Austin’s position is that the weight of the authorities on this issue supports the position that individual landowners do not have protest rights when a municipality seeks to enact a comprehensive revision of its zoning classifications and associated regulations.”

The suit Thursday was brought forward by several Austinites, including some who have been involved in challenging the city’s land development code rewrite efforts in the past. One of the plaintiffs is Austin attorney Fred Lewis who helped led the charge against CodeNextthe city’s previous attempt to overhaul the land development code which was scrapped after escalating division among city leaders in 2018.

The lead plaintiff is Frances Acuna, who lives in Austin’s Dove Springs neighborhood. A release from attorney Doug Becker states that Acuna said, “I’m suing to prevent my home from being up-zoned against my wishes. The proposed code will not only displace me but also low-income homeowners and renters in Dove Springs.”

City council members who voted to approve the first reading of the code rewrite Wednesday felt differently.

“I know Ms. Acuna, I know her well, we’ve had several conversations about this,” said Austin Mayor Pro Tem Delia Garza, who voted to approve the land code revision on first reading. “I think this is such a complex issue that we are all trying to get the right outcomes, we want to make sure we don’t have a land development code that is displacing people, the reality is that’s what we have right now. When I hear these stories of displacement — and not stories, instances of real displacement and gentrification — that’s happening right now in this current code. “

Garza believes that displacement will become “significantly worse” if the council does nothing to change the land development code.

“I understand we want it to stay this sleepy college town for a very long time,” she said. “But we have to accommodate the growth, because essentially if we do not accommodate the growth, that means people get displaced, that means people who were here — trying to hold onto their homes, trying to hold onto affordable apartments — they are going to get outpriced by people who are moving here because we don’t have the housing stock.”

Garza, who is an attorney, acknowledged that under state law property owners have protest rights when city leaders are zoning a certain piece of land or one piece of property.

However, Garza said, “I believe that our city legal believes that we are on good legal groundwork that says when you do a comprehensive rewrite to the land development code, it does not require the same kinds of checking certain boxes to be able to do that.”

Additionally, Garza said one of her worries about this lawsuit is that the protest rights as they are listed in state law only are granted to property owners.

“So then we are essentially saying, that about 50 percent of our city that are renters do not have the right to have a voice in this process,” she said.

Austin City Council Member Leslie Pool votes in opposition to an amendment during the council’s first reading of Austin’s land development code rewrite. (KXAN Photo/ Alyssa Goard).

During the council’s deliberations Monday through Wednesday, they voted on whether to include certain amendments in the code rewrite. Staff for Council Member Pool explained that Pool had proposed two amendments to protect the rights of property owners to protest zoning changes. The first of those would have had the city “give full legal effect to property owners’ valid petition rights to protest the rezoning of their property” for this land code overhaul and would have required a 3/4 supermajority vote of the council for the protested properties to become rezoned. The second amendment would have directed the city to not finish rezoning under the new code until a court issued a final order on whether protest rights exist during a comprehensive revision of the land development code.

Council Member Kathie Tovo also proposed an amendment that would have recognized protest rights.

Tovo’s amendment and both of Pool’s amendments related to protest rights did not pass.

City legal staff told the council Tuesday that they have reviewed cases from Texas and elsewhere and stick with their position that protest rights are not tied to a comprehensive land code revision.

Leading up to this point

Land Development Code public hearing
Land Development Code public hearing (KXAN photo / Alex Hoder)

Council’s deliberation this week followed Saturday’s 10-hour hearing where hundreds of people showed up to hear and speak about recommendations.

In May, Austin City Council gave city staff direction on what to prioritize with this overhaul of the city’s land development code.

On October 4, city staff published a more than 1,300 page draft of the code overhaul as well as interactive maps of the proposed zoning changes. City staff proposed more revisions in a report on October 25.

The city says they got public feedback at hundreds of meetings including neighborhood association meetings, one-on-one office hours, open houses, public testing, town halls, council meetings, and commission meetings. A list from the city of some of the public meetings held on the code rewrite since August documents 48 events, and a city spokesperson explained that over meetings with neighborhood associations and community groups were not included in that number.

But the city says they can’t quantify exactly how many people weighed in on the draft. Based on what the public said and based on the Planning Commission’s recommendations, city staff crafted a report to guide council.

In the report, staff recommends more strategies to reach the city’s goals for this land-use code revamp. The goals in the recommendations include boosting affordability, curbing displacement/ gentrification, adding density near transit “high opportunity areas”, and incentivizing the creation of “missing middle housing” (multi-unit housing, anything from duplexes all the way up to apartment buildings).

What is expected to happen next with the code rewrite

City of Austin staff explained at Wednesday’s meeting that they believe the council will be able to have a second reading of the code revision in early February and a third reading happening as soon as the last week of March. That pushes the date back a little further from the city’s initial timeline for finalizing the code changes. The second and third votes will need to happen for the changes to become official.

Austin’s City Council has the final decision on the approval of the land development code changes. It is unclear how Thursday’s lawsuit may impact that timing.

City staff said at the meeting Wednesday that they plan to create three maps to help visualize the changes to the code. All of the changes council members discussed and approved Wednesday will help build the first of those maps, which city staff expects to be viewable to the public by the end of January. Staff will also be working to create an “atlas” of suggested changes based on information from each of the council members. The best way for the public to give input on how to further refine the proposed code is working with their council member, staff said, because the constituent feedback to council members will be what the atlas is based on.

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