Ruling in property protest rights case voids Austin land development code overhaul votes

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Attorney Doug Becker argues on behalf of nineteen plaintiffs challenging the procedures the City of Austin has used in its efforts to rewrite the city’s land development code. (KXAN Photo/ Alyssa Goard).

Austin (KXAN) — In a ruling signed on Wednesday by Travis County District Court Judge Jan Soifer, the judge ruled in favor of 19 property owners who had sued the city of Austin over the procedures in the city’s latest attempt to overhaul its land development code.

The judge’s ruling voids the city council’s past two votes approving incremental steps in the land code rewrite and demands that the city recognize property owner protest rights.

The City of Austin’s land development code sets up the rules for what can be built and where throughout the city. It has not undergone a comprehensive rewrite in more than three decades.

Judge Soifer heard arguments from attorneys in this case on March 11.

The plaintiffs argued that the procedures the City of Austin used for an ongoing rewrite of the city’s land development code violate property owner protest rights.

The City of Austin argued that because the land code rewrite will be a “comprehensive revision of the code” that the city’s process for moving the code overhaul forward has followed the law.

Both attorneys and the judge recognized that there is no transferrable legal precedent in Texas for what to do about property protest rights when a city launches comprehensive zoning changes.

The ruling

Judge Soifer upheld the rights of property owners to protest and issued a host of directives for the City of Austin.

Soifer found that the city violated sections of the Texas Local Government Code in their efforts to perform a land code rewrite because they failed to provide the required notice of the Planning Commission’s public hearing to property owners whose zoning would be altered by the changes proposed. Additionally, Soifer found that the city violated state rules in failing to recognize the plaintiff’s property rights.

She declared the city must send written notice to all property owners whose property is having its zoning changed and to property owners within 200 feet of a zoning change at least 10 days before the Planning Commission’s public hearing to change the zoning.

Alternatively, she said the city could make a notice of the time and place of a public hearing held by both the council and the Planning Commission through a two-thirds vote fo the council.

The city’s current attempt to overhaul the land development code has played out throughout 2019 and into 2020. There are three required votes at each reading of the revised code and two of those have already happened, with the council voting 7-4 each time to approve the changes to the code.

But Judge Soifer’s ruling tosses those votes and hours spent laboring in city hall over which amendments to include. She said in her ruling that the first and second votes are void “for failure to give statutory notice of the Planning Commission’s public hearing.”

The attorneys for the plaintiffs say this means the city must provide notice to the public and reschedule the hearings which already happened for the land code re-write.

The judge emphasized that the property owners suing the city have protest rights under Texas Local Government Code with any change in zoning on their property or within 200 feet of their property. She also told the city that it, “must not tell property owners that protest rights are not applicable to their property because of the Land Development Code revision.”

Additionally, Soifer told the city that it has to affirmatively inform property owners and surrounding property owners of their protest rights.

She commanded the City of Austin to send written notice to all Austin property owners whose zoning is changing (or within 200 feet of a zoning change) at least 10 days before the Planning Commission’s public hearing on those zoning changes.

Soifer commanded the city to refrain from refusing to recognize and accept the property protest rights of the plaintiffs. Soifer also commanded the city to require a three-quarters vote of all city council members to adopt any zoning change for any property that has been protested by owners of at least 20% of the relevant property, citing Texas local government code.

The council’s previous two votes on the revised land development code fell to a 7-4 vote, with the same council members voting for and against. The 11-member council would need nine council members on board to surpass the three-quarters vote requirement.

In a release, the attorneys for the plaintiffs explained that this ruling means, “that for every property owner who files a valid and timely protest rights form with the City of Austin, that the City Council cannot rezone their property without a 3/4th vote of the entire Council.”

They added that this ruling also means that property owners may file protest rights up to the day before Council’s final vote on the code rewrite.

On March 16 the city announced it would be postponing the planned discussions and final vote on the land development code rewrite to an undetermined date due to the spread of the new coronavirus.

A City of Austin spokesperson sent KXAN the following statement in response to the ruling:

“While we are disappointed in the ruling, we appreciate the court’s thoughtful consideration of this matter. In light of the judge’s decision, we will assess our options, and will advise Council accordingly.”

Doug Becker with Gray & Becker, P.C., the plaintiffs’ lead counsel, stated:

“We are gratified that the Judge agreed that state law requires the City of Austin to recognize property owners’ protest rights and that there are no exceptions.”

In a release, nonprofit Environment Texas, who filed a brief in support of the city for this case, said this ruling is “a moment jeopardizing Austin’s effort to update the laws governing our land use and development practices.”

Environment Texas executive director Luke Metzger Tweeted that he is hoping this ruling is overturned on appeal.

Anna Farrell-Sherman of Environment Texas said in a release that the city’s “proposed draft code provides a framework to create a more compact and connected city that is walkable, bikeable, and busable.”

“We know we need to act now to combat climate change,” Farrell-Sherman continued. “Judge Soifer’s ruling will delay the city’s response and put Austinites at risk, which is why it’s so disappointing. If we want to continue Austin’s environmental legacy we must do
a better job of managing our city’s growth.”

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