by Daryl Slusher

Since the proposed new Land Development Code (LDC) and accompanying citywide rezonings were driven back from the proverbial five yard line in March and April, the fierce debate over that issue has been in something of a lull. A coalition of primarily East Austin, or Eastern Crescent, groups, however, quickly reengaged on the LDC in a very strong manner. Their reengagement signals, among other things, that Eastern Crescent opponents of the LDC are marshaling their forces for the next battle, whenever it might come. Plus, the strength and breadth of their coalition will make it much more difficult for the City Council majority to credibly claim that they are pushing through the LDC rewrite primarily to benefit minority and low income communities. At the very least it will make it much more difficult for the majority to credibly maintain that minority and low income communities want the benefits the Council is trying hard to bestow on them.

To review, on February 13 the Council majority approved second reading of the LDC rewrite on the usual seven to four vote (Mayor Steve Adler, Mayor Pro Tem Delia Garza, and Council Members Natasha Harper Madison, Sabino “Pio” Renteria, Greg Casar, Jimmy Flanagan, and Paige Ellis voting yes). A final vote to approve the LDC was then scheduled for March 31, April 1 or April 2, depending on when the Council finished deliberating; or when the Council majority determined there had been enough deliberating. But, as the reality of the coronavirus bore down on the country, the City announced on March 16 that the final vote and preceding public hearings were indefinitely postponed. That would have taken at least a nod from the Council majority. 

Next, Travis County District Judge Jan Soifer’s ruling came down on March 18. Soifer ruled that the City “violated” state law by not notifying property owners, and adjacent property owners, of proposed rezonings. The Judge also ruled that the City had to honor petition rights, resulting in the LDC rewrite now requiring a nine vote super majoriity to pass the massive rezonings accompanying the LDC, instead of a simple majoriity of six. On April 9 the Council voted to appeal the Judge’s ruling, on the usual seven to four vote. The City Attorney estimated an appeal would take nine to 12 months. 

A Blunt Talk With The Council Majority

With the LDC at least temporarily derailed, many folks understandably took a break from it, especially as they sheltered in place. Several Eastern Crescent groups, however, went on the offensive led by the health and neighborhood stability advocacy group GAVA (Go Austin Vamos Austin) and its Executive Director Carmen Llanes Pulido (pictured at the top addressing Council at the December 7 public hearing on the LDC).  

Lllanes Pulido sent the Council an email on April 8, a day before their vote to appeal. In the email she expressed support for Council iniatives providing emergency relief to low income communities during the Covid crisis. Lllanes Pulido, however, also referred the Council to an attached statement that discussed both the Covid crisis and the LDC — but mostly concentrated on the LDC. 

The statement begins by explaining: “The following statement was developed by a coalition of renters and homeowners from Austin’s Eastern Crescent, as well as anti-racist organizers who take our lead from the experiences of those who live, work, and worship in. . . “ The statement then explains that the neighborhoods referenced are: Dove Springs and Montopolis in Southeast Austin; Quail Hollow and the North Austin Civic Association in North Austin; the East Martin Luther King and Windsor Park neighborhoods in Northeast Austin; and the Holly, Blackshear, Rosewood, and Govalle neighborhoods in Central East Austin.” They add that the statement is “also supported by the following organizations: Go Austin Vamos Austin (GAVA), Communities of Color United for Racial Justice, Eastside Guardians, PODER, and more to come.” Since then the local NAACP and the Johnston Govalle Neighborhood Contact Team have added their support. Much of this coalition was in place during the 2019 LDC battles, but clearly the groups are strengthening their alliance and preparing for whatever move the Council majority makes next. 

The statement’s authors then pointedly note that all these neighborhoods are “in Districts 1-4,” meaning the Districts represented by Natasha Harper Madison, Delia Garza, Sabino “Pio” Renteria, and Greg Casar.
The statement then begins with a brief reference to coronavirus and a list of issues facing residents of the Eastern Crescent: “The current crisis makes it as clear as ever that our networks of trusting, grassroots relationships, rooted in community, are crucial to achieving racial equity, health, and good public policy.” Next the statement lists a series of issues in the Eastern Crescent: “displacement, lack of affordable housing, razing and replacing existing affordable rental units, flooding, and inadequate drainage infrastructure” plus a need for “better parks, more open space, watershed protections, and a safe community environment.”

At this point comes a rapid segue to the LDC: “These changes do not require a comprehensive re-write of the land development code.” This contention that a new LDC is not necessary to address such issues contrasts with the position of the Council majority who regularly insist that a new LDC is essential to addressing a wide array of challenges. Mayor Steve Adler articulated this position at a Council meeting late last year.

Adler: “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,” Adler somewhat hedged by saying that the Code alone can not solve these problems, but none of them can be solved without a significant code change.

The coalition statement goes on to bluntly note: “Low-income renters, homeowners, and Austin’s most racially diverse and historic communities of color impacted by gentrification have never asked for an overhaul of the LDC or the removal of public review on so many critical issues.” The statement also notes that instead of helping low income communities, “There was evidence that the proposed upzoning could make things worse for many of us and our neighbors.”

“Therefore,” continues the statement, “we saw the recent ruling on the lawsuit against the City of Austin for its actions on the LDC, as a sound ruling on a NECESSARY action of last resort, because of our elected officials’ and staff’s repeated offenses to the public process.” 

A partial list of those “repeated offenses” follows: 

  1. “a lack of proper notification, 
  2. deliberate misinformation regarding notification and protest rights, 
  3. the exclusion of directly impacted people from critical land use decisions that could negatively impact them, including and especially low- to moderate-income residents and communities of color, and 
  4. a lack of action on recommended equity-impact analyses and proactive anti-displacement measures.” 

The statement then goes on to recommend a series of specific approaches, all under the umbrella of “Listen and follow the lead of the people most directly impacted.”

Next the statement addresses what the signers view as motivations of LDC rewrite backers, “it was a new and confusing code being written by and for real estate developers and focused on the demand of upper middle and high-income renters and owners, often at the expense of lower income people and historic communities of color.”

  Then, taking aim at a core element of the LDC — as well as urbanist ideology —  the statement points out, “Market-rate multifamily developments are not affordable to truly low-income renters.” As evidence, they invoke, “Our own demographer,” meaning City Demographer Ryan Robinson, who as GAVA puts it, “pointed out the city’s extensive and unprecedented boom in multifamily development. . . is not addressing the affordability issue.”

Following that, the authors take aim at a sore spot where the Council majority’s oft-expressed commitment to the rights of renters and the poor crashed whimperingly into their devotion to developers. The statement charges: “To add insult to injury, the pro-LDC-rewrite council members and mayor voted against providing tenant protections in any bonus units.”

A Fraught Council Skirmish Over Tenant Protections

The above reference to “tenant protections in any bonus units” concerns an amendment proposed by Council Member Kathie Tovo during second reading of the LDC. “Bonus units” refers to the extra “affordable” units that would be allowed in transition zones where single family lots would be upzoned to allow four to six units. Those four to six units would feature no affordability requirements. But, developers could get a “bonus” of up to four units if those qualified as affordable. Tovo tried to add “tenant protections” from the City’s “Affordabilty Unlocked” program — a program introduced and championed by Council Member Greg Casar. Casar, however, voted against including those protections for transition zones. For a better understanding of this debate and a review of the nature of the LDC debate, let’s take a brief trip back to those long ago days of February – specifically the morning of February 13. 

One of the more interesting aspects of this discussion was that forty seconds after it came up Casar, the vocal champion of renters, left the dais. Now, all Council Members have to take at least brief trips away from the dais at one time or another. For instance Council Member Pool left the dais shortly before Casar, but made it back in time for the vote. A number of close observers, however, found the timing of Casar’s break rather interesting.

The Mayor asked staff why they had not recommended approval of Tovo’s amendment. Staff referred to how the measures in Tovo’s amendment are applied in city subsidized development and said conversations with affordable housing developers had found that applying the restrictions to private developers could work against developers’ willingness to build affordable units. Thus, the tenant protections could “potentially” result in less affordable units being built.

Tovo countered by pointing out that developers in transition zones will receive dramatically increased entitlements i.e.“a large increase” in property value. She concluded, “I think it’s important that we return some of that benefit to the community.” 

The Mayor then called for a vote and tenant protections failed on a four to five vote. Tovo, Pool, Kitchen and Alter voted yes. The Mayor, Harper Madison, Renteria, and Flanagan voted no. Garza abstained. Casar was still off the dais.

A discussion ensued after the debate. Tovo said she would like to try again with a full Council. She specifically requested that Casar be there for the vote and referred to his vocal advocacy for low income renters. The Mayor said another vote was allowed under Council rules. More discussion ensued. 

Garza then tried to explain her abstention: “we all want tenant protections and families to stay here and all of that stuff. It’s just disagreements on how we get there. And so I abstained because I absolutely want tenant protections in every single development and everywhere, but if it, in fact, turns into less affordable units, that’s concerning.” Adler said that was his “rationale” as well.

Council Member Leslie Pool countered, “If we signal that we don’t want these (tenant protections) to apply and we say it’s because we anticipate that providing these protections would impact affordability. . . what is that message that’s being sent?” 

Casar returned and explained, “I would support these sorts of tenant rules as a citywide law,” but “if we currently aren’t getting them fully to work and (not getting) buy-in from our affordable housing developers when they’re getting money, then I think this is — I think we have to keep working on this. That’s why I’ll vote no and keep working on the issue.” He also said, “I want the legislature to change their law so we can make it a blanket law so people don’t have a choice.”  

And, finally the roll was called. Tenant protections were rejected by seven to four, with only Tovo, Pool, Kitchen and Alter voting for the tenant protections. That evening the Council approved the LDC on second reading by the same seven to four breakdown, just with the yeses and nos reversed.  

Back to the statement

After hammering the Council majority for not supporting the tenant protections, the statement authors were still not done: “Had more low income residents and communities of color believed that the proposed LDC re-write was truly beneficial for affordability and housing equity [frequent claims of the Council majority], GAVA, the NAACP, PODER, Communities of Color United, and others would have supported it. But, dozens, hundreds of voices of directly impacted people voiced concern, if they were lucky enough to find out what was happening without proper notice.”

The jab about the lack of “proper notice,” like many other points in the statement, refers to the lawsuit. The specific reference here is to the Council majority seeking to zone virtually every property in the City without giving notice to property owners and nearby property owners, as required by state law. The majority held that such notice was not required for mass rezonings.  At court the judge repeatedly questioned the lawyer for the City on this point. Then, as noted at the top, she ruled that the City had “violated” state law and overturned their first and second reading votes.

Referring directly to the ruling, the statement continues, “We acknowledge that this ruling, alone, will not, and cannot, achieve our objectives. It does not create affordable housing or prevent displacement. The court’s ruling just gives us space and a little bit of time to work on these priorities, collectively, instead of spending all of our energy trying to stop an LDC rewrite that we never asked for and that was never meant for us.”

The statement ends by urging the Council to work with community members on finding solutions to a wide array of challenges, but still manages to work in another comment on the LDC: “let’s focus on tackling the various challenges we face—growing economic inequality, displacement, flooding, and systemic inequities—together. These challenges won’t be fixed by adopting a new form-based zoning code, easing environmental protections, or incentivizing density all over the city [core elements of the LDC]. But we’ve got other tools: community knowledge, policies, and new practices, including direct support for the communities most impacted by this crisis and the systemic inequities that it magnifies. It’s time we take those tools out and start using them.”

What’s Next

When the LDC may reappear on the Council agenda is uncertain with many factors involved. The Council remains focused on the coronavirus outbreak with some amount of unity achieved there. 

The pro-LDC group AURA recommended ways the Council majority could achieve some of the same goals with just a simple majority vote, but no apparent move has been made in that direction. When the majority voted to appeal, the Mayor made soothing comments about trying to work out a compromise, but nothing has emerged there either. Meanwhile, Garza is in a July 14 runoff in her race for County Attorney. A race to fill her seat is already quietly underway. The seats of Casar, Flanagan, Pool, and Alter are on the November ballot. Alter faces a challenge by an urbanist candidate while the other three races have not taken shape yet. The pending elections probably work against a move like that recommended by AURA.

So for now it remains uncertain when the LDC might reemerge.  GAVA and many residents of the Eastern Crescent, however, will be ready at any point. Many of the same folks were in opposition last time around, but they will be stronger and even better organized if and when the next battle occurs.

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