Far-reaching land code case in the hands of Austin judge

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Residents and city officials are hoping for a verdict this week from a Travis County judge in a lawsuit to determine the rights of 15,000 single-family homeowners to protest the damage they say will be done by a controversial, complicated overhaul of Austin’s land development code.

District Judge Jan Soifer heard testimony last week but set no date for ruling on the suit filed on behalf of 19 of those homeowners. The suit contends the city council refuses to follow state law giving property owners protest rights in zoning cases. The law also requires a supermajority, or nine of the council’s 11 votes, for final passage of its code rewrite. 

The Austin City Council passed the new land development code on its first two readings by votes of 7 to 4, with Mayor Steve Adler voting with the majority. One more reading is required for final passage.

During discussion, the council members in the minority — Alison Alter, Ann Kitchen, Leslie Pool, and Kathie Tovo — at times expressed frustration with the tactics of Adler and the majority and promised to offer a revision respecting the rights of single-family homeowners. 

“Councilmember Alter has consistently voiced her concern that this code is deeply flawed and that this process is damaging community trust,” Mina Shekarchi, Alter’s aide, said in response to a request for comment by The Texas Monitor. She “fears that railroading this process through in such a short  amount of time stacks the decks against everyday Austinites and allows developers to exploit the code for their own interests.”

The Texas Monitor contacted the mayor’s office to ask if he favored going ahead with a final reading and vote or waiting for a ruling by Soifer, but he did not respond before this story was posted.

The lawsuit is just the latest step in a divisive process of rewriting an almost 40-year-old land development code. At this point, the fight has gone on for eight years. In August 2018, Adler suspended work on the original attempt, called CodeNext, a six-year, $8.2 million effort that left the council hopelessly divided and the community angry and confused.

The revision is nearly 1,400 pages long, but the change that has the protesting homeowners most upset are at least 75 transition zones created by staff that would allow developers to put up multi-family units adjacent to single family neighborhoods. The changes, they say, threaten the value of their homes and the character of their neighborhoods. 

The city’s refusal to grant the individual homeowners the right to challenge those zoning changes prompted the suit.

This latest version has divided the council along the lines of old leadership represented by the four council members who voted against the code, versus the new majority. Council members Greg Casar, a labor activist who has filed paperwork for a possible run at a state senate seat being vacated by Kirk Watson, D-Austin, and Delia Garza, who is in a Democratic runoff election for Travis County attorney, have been the most outspoken in favor of the new code.

Adler and the council majority shot down dozens of amendments to the proposal made by its opponents. During one lengthy discussion before the second vote, Alter and the other minority members objected to the dismissive way Adler and majority members were treating them. 

After the vote, Adler offered a compromise in the size of some of the transition zones, in an effort to woo minority members, but admitted it wasn’t necessary. “You’re going to have to come up with a reason, or multiple reasons, for the majority to compromise in ways they don’t have to in order to pass a code,” Adler said, according to the weekly Austin Chronicle.

Seven votes will not be enough to pass the code revision if Soifer sides with the homeowners who organized in a nonprofit group called Community Not Commodity, led by Austin attorney Fred Lewis, one of the chief opponents of CodeNext.

The Community Not Commodity website has a place for homeowners to file a protest objecting to their property being rezoned. Lewis said about 15,000 homeowners have lodged protests. 

The city has not disclosed how many protests have been made directly to the city. City attorneys on Wednesday told Soifer they believe those individual protests have no standing because the city is making broad legislative changes to the entire zoning code.

Protest rights for zoning changes were established by the Texas Legislature in 1927. The Local Government Code (Section 211.006(d)) says that if property owners representing at least 20 percent of the land included in a proposed zoning change area, or owners of land near or next to that area, file a protest, then the change can be approved only by a three-fourths vote of the council. 

“I don’t care what your politics are, this cuts across class and race and geography. This is about people’s homes and their neighborhoods,” Lewis told The Texas Monitor. “You have a responsibility to listen to the people and to accommodate them. That’s how it works.”

Should Soifer’s ruling side with the opponents, and if her ruling withstands any appeal, the city would be required to consider individually the protests that could be filed by thousands of owners whose land would be rezoned under the proposal. In court Wednesday Jane Webre, an attorney for the city, said requiring such a response was absurd.

Lawyers for the city have argued for months that a policy-based revision is not subject to the objections of individual property owners. “With the comprehensive revision, council is looking at a bigger picture,” Deputy City Attorney Deborah Thomas told the council at a meeting after the lawsuit was filed.

Austin Habitat for Humanity and Austin-based Environment Texas filed court briefs in support of the land development code in its proposed form. Habitat, which builds homes for low-income people, supports the code’s goals of new zoning to make housing more affordable, the brief said. Denser housing, the Environment Texas brief said, will ultimately reduce energy use and help relieve pollution from traffic congestion.

Planning Our Communities, a leading group supporting the new code, did not respond to a request for comment by The Texas Monitor.

As written, the code’s benefits will come at a cost to the owner of every residential lot in the city, Alter said. And rather than encourage affordable housing, its restrictions will provide incentives for still-bigger and more expensive construction in the city, she said.

Alter and the other council minority members have not been specific about when they will release their alternative proposal. On Wednesday, Alter said their effort would be much more collaborative, with more consideration for single-family homeowners.

“The goal here is to provide opportunities for growth more thoughtfully — where it is most needed, and at an affordable price, without compromising the cost stability of older homes rented or owned by families,” she said.

Lewis, who is supportive of that effort, said he isn’t sure it’s going to change the minds of the council majority, whose lawyers are in court fighting against compromise. The city is arguing that it has the right to act without considering the impact its zoning changes will have on individuals, Lewis said.

“Then you’ve just zoned property without the facts,” he said. “Can you believe how tone-deaf that is?”

Mark Lisheron can be reached at [email protected].

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