by Daryl Slusher
Austin’s Land Development Code (LDC) rewrite recently made an appearance on the Austin City Council agenda. This was at their April 9 online, socially distanced meeting. The meeting was otherwise dominated by coronavirus briefings and coronavirus-related items like additional emergency funding for local social service agencies. At issue on the LDC was whether Council wanted to appeal the ruling against the City in a lawsuit by LDC rewrite opponents.
In the suit, multiple plaintiffs challenged two central aspects of the citywide rezoning, which Council included in the LDC rewrite. Those two items were/are:
- the City’s refusal to provide notice on the rezonings; and
- the denial of petition protest rights.
The City lost on both counts in a March 18 ruling by Travis County District Judge Jan Soifer. The Council faced a court deadline of April 17 to appeal.
The Council did not actually vote to appeal. Instead the majority voted down a motion from Council Member Leslie Pool to not appeal. Since City Attorney Anne Morgan said the Law Department’s normal course of action would be to appeal, the Council majority then let that take its course. The vote on Pool’s motion was seven to four, with the same vote breakdown as on all other major LDC votes. Voting against Pool’s motion, and thus to appeal. were Mayor Steve Adler and Mayor Pro Tem Delia Garza along with Council Members Sabino “Pio” Renteria, Greg Casar, Jimmy Flanagan, Natasha Harper Madison and Paige Ellis. Voting not to appeal were Pool and Council Members Kathie Tovo, Ann Kitchen and Alison Alter. City Attorney Morgan estimated an appeal would take nine to 12 months.
That’s a long way from where the LDC rewrite stood only a few long weeks ago. Readers may recall that in March the very controversial rewrite was poised for final approval by the Council majority despite intense and widespread community opposition — especially in Austin’s central city, including East Austin.
The Council majority approved second reading of the rewrite on February 13, on the usual seven to four vote. As staff scrambled to add the multiple Council amendments from that vote, public hearings were scheduled for March 24 and March 28. Council deliberation and a third reading vote were scheduled for March 31, April 1 and April 2. The idea was that Council could deliberate on final passage over those three days and then take a final vote. In other words Council planned to be done with the LDC rewrite by April 2.
As the clock ticked toward those dates, and as the coronavirus loomed, folks on both sides of the issue packed into Judge Soifer’s courtroom on Wednesday March 11 to hear arguments in the lawsuit.
Substance of the Lawsuit
For a quick review: There were two key arguments made by the plaintiffs. The first was that the City did not give proper, or any, official notification to property owners whose property was being rezoned — or to neighbors of the properties. Second, and more consequential, the plaintiffs maintained that petition protest rights were being unlawfully denied.
In most zoning cases, it is the property owner seeking the zoning change. On such cases other property owners within 200 feet of the property in question have petition rights. If owners of 20% of property within 200 feet sign protest petitions against the proposed zoning change, that constitutes a “valid petition.” With a valid petition in place, zoning changes require a three-fourths super majority to be approved. For the Austin City Council, that means nine of 11 votes.
Property owners themselves also have petition rights. That is seldom an issue, however because, as stated above, it is usually the property owner seeking the zoning change — frequently a developer or speculator.
On the LDC rewrite, however, the Council majority directed staff to rezone virtually the entire City. They directed staff to do so without providing official notice and also took the position that petition rights do not apply in a citywide rezoning. This is part of what developers would get from the LDC rewrite. They would get not only a new, theoretically streamlined, code, but have thousands of new properties opened up to higher density development — without having to suffer through zoning cases and meetings with neighboring residents.
The City’s claims that neither notice requirements nor protest rights applied in a citywide rezoning led the Judge to repeatedly interrupt the CIty’s lawyer and courteously ask for an explanation of why notification and protest rights apply when only a few are affected, but not, in the City’s view, when virtually everyone is affected. Although this appeared to be a bad sign for the City, the Judge explained that before making a decision she wanted to again review the briefs submitted by both sides. The crowd then filed out, nobody coughing the entire time. Some shook hands, others elbow bumped.
Over the next few days, the brutal reality of the coronavirus situation began to set in. On Saturday March 14 the Mayor issued an order banning gatherings of 250 or more people. Among many other things, this made the LDC public hearings look like a very questionable idea. This was especially the case on an issue that some media had already noted falls heavily on the elderly — as does the coronavirus. A bevy of discussions took place at City Hall and late in the day on Monday March 16 the City announced that all the hearings and the third reading vote were indefinitely postponed.
Then, two days later Judge Soifer issued her ruling. Soifer ruled both that the City had not provided proper notification and that the City erred in not granting petition rights. Thus, Soifer specifically voided both the first and second reading votes. It’s what some folks in the business call being “poured out” of court.
It is far from certain when, or how, the Council might move forward again on the LDC. Throughout the current LDC process, the majority stressed the urgency of approving a new code. They now face a decision of whether that urgency still holds enough to merit seeking a compromise that would get nine votes, preferably 11. Otherwise they have to wait until the case wends its way through appeal, or appeals, and hope they can get a reversal on appeal.
If they wait, at least one of the majority has announced she will be gone. Garza announced late last year that she would not seek reelection and instead run for County Attorney position. She is currently in a runoff with Laurie Eiserloh rescheduled for July 14. Council Member Casar could also be on the ballot that day as well. He is still pondering a run for the State Senate seat vacated by Kirk Watson. Watson is headed to Houston to be the first Dean of the University of Houston Hobby School for Public Affairs. Casar earlier established a committee to raise funds and explore a run, but has said he is now focused on the coronavirus and will make a decision later.
Casar also faces Council reelection in November as does Flanagan from the LDC majority. Pool and Alter in the minority also face reelection. None of them appear to face serious challenges at this time, but it’s still early.
Shortly after the ruling the urbanist/pro-LDC rewrite group AURA issued a statement with recommendations not only to appeal, but also with suggestions on how Council could move forward on key elements of the LDC without the citywide rezoning. Those included changing setback requirements, compatability standards, and minimum lot sizes. So far there has been no apparent movement on any of that. If there were it could take the form of the Council majority trying to ram through changes or these could be some of the subjects for compromise discussions. AURA clearly had in mind the former path.
At the socially distanced Council meeting, Mayor Adler talked compromise: ““What I would say is that I support the appeal, but I think that the real emphasis and attention right now needs to be us all discussing these issues and trying to see if there is a good resolution for the community that enables us to get to a better place outside of and without regard to that appeal. I think it is important to have the appeal just to have some legal questions decided.”
Soothing words indeed, but they fell on ears who for years heard Adler promote his “Austin Bargain,” in which: “let’s agree we will not force density in the middle of neighborhoods. There’s no sense in shoving density where it would ruin the character of the city we’re trying to save in the first place, where it’s not wanted by its neighbors, and where we would never get enough of the additional housing supply we need anyway.” Once he got reelected Adler adopted pretty much the exact opposite position on every single point in that statement.
So trust issues linger, but at the same time both sides face risks in waiting and not seeking a compromise. For the majority — assuming they remain a majority — they risk losing on appeal. Then they would have stubbornly refused to compromise all along the path, would have lost in court, and face the requirement to get nine votes. Their LDC cause would at that point be doomed.
For the four Council Members in the minority, if they prevail on appeal they will be in a strong position to dictate a compromise or at least to kill the citywide rezoning aspect of LDC. If, however, Soifer’s ruling were overturned on appeal the minority would likely be quickly marked by the proverbial tire tracks of the LDC, rezoning included, rolling to approval. So both sides have incentives to compromise and both have the temptation to wait it out.
In any case it seems almost certain there will be a truce period during at least the current phase of the coronavirus crisis — a stage of uncertain duration. Mayor Pro Tem Garza for instance took pains at the Council meeting to explain, “We are not choosing to do this during this crisis. There are legal timelines that require us to make a decision.” Garza was right that the Council faced a court deadline, as noted already. Citizens will have to assess for themselves, however, whether making that statement marks a softening of the heart or just a calculation in Garza’s County Attorney race.
The Austin Independent will continue to keep an eye on this issue.
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