I know. I know. Most everything in the news now is focused on the elections; and for good reason. The Mayor, Council and/or City staff, however, have chosen Election Night as the time to start this Council’s final push to pass Land Development Code (LDC) amendments. In our previous two installments in this series, we reported that Mayor Steve Adler and an undetermined number of Council Members want to push through amendments to the LDC in the final days before Adler and several Council Members leave office in early January. The first stop in any such process is the Planning Commission. Pursuant to that, the City has scheduled LDC amendments on the Planning Commission agenda for this Tuesday, Election Night. Actually the meeting begins at 6 PM, even before polls close, but a cluster of other items are listed before the proposed Code amendments. The Council is scheduled to consider the LDC amendments on December 1.
To be complete, these Planning Commission items result from preliminary actions the Council took several months ago, but no specific dates were set until a notice went out last week. Citizens were unable to view the actual agenda items and backup until Friday.
It boils down to this. Anyone who wants to weigh in on the LDC discussion at the Planning Commission will have to cancel any election night plans they had and instead go to City Hall and wait around until the Planning Commission gets to the item. Keep in mind that this is something that is likely to affect every single person in Austin, especially central city homeowners. And, this is in a town where a lot of people are civic minded and follow elections closely — something that is widely considered good citizenship.
Sure, the scheduling might just be a coincidence, but doing it on purpose would better fit the undemocratic and manipulative way that Adler and his Council majorities have gone about the whole years-long process.
Ironically, that leads us straight into our third installment on the LDC. First though let’s just add that a good faith move would be to postpone the items at Planning Commission and give people back their election night. If not, then decency would dictate that there be a full Planning Commission to hear the public and consider the proposals, with no Commissioners absent to attend election events. Now, on to Part 3 of our LDC series.
A Tortuous Mix
The LDC is complex and can be mind numbing. That’s a fundamental reason why, over the years, press coverage has defaulted to the simple minded framing of urbanists and housing advocates versus preservationists; but, that’s another topic.
The core point here is that the LDC is complex enough on its own, but the Mayor and then Council majority insisted on clumping another complex and mind numbing element onto it; a rezoning, or upzoning, of virtually every property in the entire City — with a particular concentration on single family homes in the central city. Then, the Mayor and Council majority claimed over and over that virtually every local need and progressive aspiration is dependent on passing the whole package. Let’s take a look.
The Council majority at the time the key decisions occurred consisted of Adler, Mayor Pro Tem Delia Garza, and Council Members Natasha Harper Madison, Sabino “Pio” Renteria, Greg Casar, Jimmy Flanagan, and Paige Ellis. Of course Garza and Casar have gone on to bigger things and Flannigan was defeated by Mackenzie Kelly in his 2020 quest for reelection. Casar’s replacement Chito Vela is a solid LDC vote. The positions of Kelly and Vanessa Fuentes, who replaced Garza, are still not totally clear.
The core rationale for rewriting the LDC, repeated over and over again, has been that the Code slows down development approvals and contributes to the affordable housing crisis. As we saw in Parts 1 and 2 of this series, however, the code clearly is not slowing down development approvals anywhere near as much as ongoing rhetoric indicates. In fact, Austin is a runaway leader in per capita issuance of building permits and over the last five years issued more building permits in raw numbers than each of the three other booming Texas cities that are bigger than Austin. Also, we discussed how developers tend to build what they think will be most profitable for them, which tends to not be “affordable housing.”
Nonetheless, there is fairly widespread agreement that a LDC update could make sense. That has been widely accepted since well before Adler and his crew arrived. That’s not to say it would be easy or a love in. Disagreement of course emerges on what exactly needs to be changed, what needs to be eliminated, and what needs to stay. Thus, rewriting the code alone would be an arduous, disagreeable and somewhat monotonous task. In other words it would be similar to many other major issues that come to the Austin City Council. But, passing something would not be outside the realm of possibility, or a violation of citizens’ rights under state law.
Adler and his Council majority, however, insisted on adding another element onto a LDC rewrite. And it’s not a little thing either. As noted above that is a rezoning, an upzoning of virtually every property in the entire City. The most controversial and most resisted part of this upzoning was something the Council called “transition zones” in which huge swaths of single family homes in the central city, thousands of homes, would be upzoned to allow four to six units per existing lot. This was considered an affordability measure even though the affordable units would only come as a bonus after developers get to build multiple market units on what are now single family lots; and then only if developers actually decided to build the affordable units.
After packing these two monumental elements together Adler and his Council majority decided that they did not want the City to notify homeowners whose property the City planned to upzone — or notify nearby property owners. Under state law Cities are required to notify both the property owner and property owners within 200 feet of the property proposed for rezoning. Notification of homeowners might seem particularly logical in a situation where the City planned to upzone long stretches of single family units in an area to allow four to six units per lots, thus totally transforming neighborhoods and affecting people’s investments in their homes.
The Austin City Council majority, however, insisted on not notifying homeowners. The City argued that since they were doing the upzoning en masse they did not have to follow the state laws on notifying property owners and nearby property owners. They repeatedly cited a case from Frisco, Texas as a precedent. Two courts, however, have now rejected that analogy.
This brings us to petition rights, a second state law regarding zoning. If the property owner or the owners of 20% of the property within 200 feet of the subject property sign a petition objecting to the zoning change, then a three-fourths vote of the governing body is required to make the zoning change. This is called a valid petition and is a staple of state zoning law and has long been a feature of zoning in Austin. Without a valid petition only a simple majority is needed to approve a zoning change.
Adler and his allies had a majority of seven to four, but that does not reach the required three-fourths. So Adler and the Council majority determined that state law did not apply to their massive rezoning.
It was on these two issues that a coalition of citizens sued and claimed the City was violating state laws on notification and petition rights. The Council majority was plowing ahead toward third reading, but then stepped back and announced a delay in mid-March when the coronavirus hit. Shortly afterward Judge Jan Soifer ruled in favor of the plaintiffs on both counts. Soifer threw out the Council’s first and second reading votes. The Council majority then voted to appeal. This March the City lost the appeal. The new Council chose not to file a further appeal and the deadline to appeal further has now passed.
So, to summarize, Adler and his Council majority insisted on moving forward not just on rewriting the Land Development Code, but also with rezoning almost the entire City. In the process, they tried to deny tens of thousands of affected citizens their notification and petition rights.
Then they started marketing the whole package as essential to virtually every aspect of desirable local accomplishment. Adler perhaps gave the broadest summary when he mused in late 2019: “With every day, we’re losing the benefit the code rewrite can provide on environment and climate mitigation; we’re losing the ability to move forward on mobility choices and safety and congestion; we’re watching the displacement of vulnerable people in communities; we’re losing affordable housing stock every day, we’re losing potential housing supply on lots that we’ll never recover; we’re not reducing flood risk, and we’re not increasing equity in the ways that a code rewrite can.”
Now, almost eight years have passed since Adler and the first 10-1 Council took office. The Land Development Code on which there is widespread agreement that it needs to be replaced, instead remains in place. It seems fair to say that Adler and the Council majority have squandered almost eight years of opportunity to rewrite the actual Code that they consider critical not only to affordable housing, but to a host of related, and unrelated problems. Now, they are trying to rush through some changes before several members leave the Council. Is it any wonder many citizens don’t trust the Mayor and Council on this?
Coming Soon: How and when did voting lockstep with developers become part of being a “progressive?”
Correction: This story, specifically paragraph 16, was corrected to reflect that the Council did not file an appeal in the Land Development Code case after losing the first appeal. The paragraph was also changed to reflect that third reading on the LDC was postponed due to coronavirus, and then the judge’s ruling on the LDC case happened days after that. I apologize for the errors.
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