The Acacia Cliffs apartment complex on Hart Lane in Northwest Austin defies several Austin political/governance precepts that get repeated often by members of the “progressive” cohort. First of all Acacia Cliffs is a high density affordable housing development in NW Austin. That’s a part of town where many City Hall insiders would have you believe there is neither density nor apartments, much less affordable ones. Also defying local political assumptions, the population of the apartment complex is very diverse, both racially, age-wise and in national origin. They appear to be living together in harmony amid friendship between neighbors with kids playing happily together.
By the way these roughly 290 affordable units, with an estimated 255 currently occupied, are what many refer to as “naturally affordable.” That means they are not subsidized affordable housing, but are yielding prices that meet official “affordable” definitions.
Residents also point out that many of them work in the area and many of them at service jobs. They also frequently mention the “walkable” nature of the neighborhood. The “Cliffs” part of the name Acacia Cliffs refers to how the complex is perched above Far West Boulevard which is lined with restaurants, offices and an array of retail outlets. Also, as residents point out, an HEB is within walking distance.
To summarize, Acacia Cliffs is a really nice and affordable community, what the Mayor and City Council Members repeatedly talk about wanting to create — or maintain — in Austin. So, wouldn’t it be a real shame if a policy the City Council passed to allegedly make it easier to build affordable housing led to the destruction of the Acacia Cliffs apartment complex and its close knit community?
Well, that’s exactly what’s about to happen.
And wouldn’t it be even worse if, when passing that policy, the City Council enthusiastically removed a staff-backed provision which would have required developers receiving density bonuses to offer residents new units “at the same comparable prices and size?”
Well, let’s take a look.
In February 2024 the previous Council passed something called DB90s, which stands for Density Bonus 90s. (That was the Council before Marc Duchen, Mike Siegel and Krista Laine replaced Alison Alter, Leslie Pool and Mackenzie Kelly respectively.) DB90s feature a “density bonus” which allows developers of rental properties to build up to 90 feet tall in areas that otherwise allow 60 feet. In exchange developers must include either 12% of units affordable to families earning 60% of median family income (MFI) or 10% of units affordable to those making 50% of MFI.
The City says the current MFI is $133,800. At 60% MFI, that means the new apartments would have to be affordable for a family of four making $80,280 per year. Members of the newly formed Acacia Tenants Association say that many of their residents make considerably less than that.
This new policy was part of the City’s response to three ordinances being struck down in court because previous Councils did not follow state law in passing them; part of a long series of City legal defeats that began during the years when Steve Adler was Mayor.
City staff included this requirement in the proposed DB90 ordinance which went to the Planning Commission on February 13, 2024. As Assistant City Attorney Trish Link explained to the Commission, developers of DB90s would have to offer residents new units “at the same comparable prices and size.” This is commonly called the “right to return” policy.
Some Planning Commissioners raised concerns about the right to return policy and the group recommended that staff establish an administrative waiver policy.
When the item came to Council two weeks later, City staff began the discussion by recommending that the section with the right to return rule be removed. Staff explained that Planning Commissioners were concerned and that “stakeholders” (almost certainly meaning apartment developers) were “surprised” by that provision. Rather than follow the Planning Commission recommendation to establish a waiver process, staff instead recommended removing the right to return rule entirely. The reason stakeholders were surprised was because the other court-rejected policy that DB90s were helping to replace did not have a right of return provision.
No one on the Council raised any objections except then-Council Member Alison Alter. Alter ultimately voted no and then-Council Member Mackenzie Kelly abstained. The Mayor and all other Council Members voted in favor the DB90 proposal, with the right to return provision removed.
The DB90s featured a number of other incentives for developers that the Council Members expressed hope would result in more affordable housing. For instance DB90s expanded the reach of density bonuses related to height. Responding to a question from Alison Alter City Zoning Officer Joi Harden explained that the density bonuses in the court-felled ordinance were limited to “transit corridors and future transit corridors.” With DB90s, however, if a property has “certain (types of) commercial office zoning. . . no matter what street type you’re on, you can apply for DB90.”
As part of passing DB90s the Council also dropped compatability requirements which governed how close tall buildings could be to residential neighborhoods.There have been some fifty DB90 applications since the ordinance passed.
Also, properties that are not zoned as one of the commercial categories eligible for DB90s can apply for a zoning change to allow DB90s. That’s what is taking place with Acacia Cliffs. They are seeking a zoning change which will allow them to build under DB90 rules.
A little further down, we’ll dive a bit deeper into how DB90s were created and how the right to return was removed. For now though let’s hear the developer’s side of the story.
Acacia lobbyist Michael Whellan on the proposed redevelopment
The Austin Independent contacted Michael Whellan, a prominent local lobbyist who represents the owners of Acacia Cliffs and has represented a number of other apartment builders. Regarding the number of affordable units that would be in the new development, Whellan said, “The decision on which to offer has not been finalized; currently, the owner expects to provide at least 78 affordable units on day one, which is 12% of the units, for 40 years.” In all there will be around 700 units.
Whellan also said it is accurate that there are 290 affordable units at Acacia Cliffs now with an estimated 255 currently occupied. That’s around 200 less affordable units with the new development. Whellan added that the new affordable units would likely cost more because they are new.
We also asked Whellan if his client would be proposing to tear down the apartment complex and build a new one if not for the Council having passed DB90s. He did not answer directly, but said, “Well, something is going to happen. The units are over 50 years old” and “any structure begins to age.” He added that the complex fails to meet the standards of several current City codes and that old heating and cooling systems drive up the utility bills for tenants.
Whellan also made his case for the Acacia Cliffs rezoning and DB90s in general: “An important point that people forget is that the units are affordable because they are over 50-years old and there is nothing that prevents someone from replacing those units without any affordability at all. On Day 1 (of the planned new facility) it might be fewer units but the advantage of DB90 is that at least on Day 1 of a new structure you have built in affordability. If somebody did not use DB90 or another density bonus program somewhere in the City and had 50-plus year old units, they could replace those units without any affordability at all and without any kind of tenant protection at all.”
On Day 1 (of the planned new facility) it might be fewer units but the advantage of DB90 is that at least on Day 1 of a new structure you have built in affordability.
Michael Whellan, Lobbyist representing acacia cliffs apartment owners
Whellan additionally provided a flyer sent to residents explaining that no one will be evicted before January 2027 at the earliest. Acacia residents would receive, consistent with city requirements:
- “Relocation benefits equal to four months of rent and fees.
- At least $1,200 for moving expenses – or more, based on a calculation that the city will provide at time of payment.
- Reimbursement of their security deposit.
- The right to terminate their lease without a penalty.”
DB90s Path to Passage
Whether one agrees or disagrees with Whellan’s arguments the fact remains that the actions of the 2024 Council helped speed up the elimination of existing affordable housing while removing a benefit that would have required that those displaced from affordable units be offered a unit in the new facility of “comparable prices and size.” Let’s trace the path of how that happened.
The proposed DB90 ordinance went to the Planning Commission for review on February 13, 2024. The original draft from City staff featured provisions requiring developers of DB90s to “replace all existing units that were affordable to a household earning 80 percent MFI (median family income) or below in the previous 12 months and have at least as many bedrooms as those units. (emphasis added)”
That section of the proposed ordinance drew concern from some Commissioners, beginning with then-Planning Commissioner Ryan Johnson, an appointee of then-Mayor Pro Tem Leslie Pool. Johnson pointed out that the previous density bonus in the court-rejected VMU2 (Vertical Mixed Use) ordinance did not include the “right to return” provisions. He wondered why it was included now.
Erica Leak of the Planning Department explained that the DB90 ordinance was “intended to replace both VMU2 as well as the residential and commercial density bonus program” included in the Affordability Unlocked program. Affordability Unlocked, a program championed by current Congressman Greg Casar when he was on the Council, included the right of return.
Leak also told the Council that the right to return protections were included, for among other reasons, “so that the program (DB90) won’t incentivize the redevelopment of naturally occurring affordable housing.” That, of course, is exactly what’s happening now with Acacia Cliffs.
Johnson said he understood that concern, but he worried that the requirements could “go too far in the other direction and just simply encourage people to never use DB90” and instead pursue a course that “doesn’t have an affordability requirement at all.” That, by the way, is what Whellan recently told the Council his client would do if they were to turn down the zoning and DB90 request.
The Austin Planning Commission discusses DB90s on February 13, 2024. Screenshot from City of Austin website. Photo at top by Daryl Slusher
The Planning Commission then slowly moved through questions and comments from other Commissioners. Anyone not familiar with the Commission, or even people familiar with City Hall, would find it very difficult, probably impossible, to understand what the Commissioners were talking about. That’s because most of them talk in jargon and often refer to specific parts of an ordinance by the numeric or bureaucratic title rather than describing what they are talking about. For instance, when discussing the right to return provision several commissioners referred to the requirement to replace affordable housing units as “4 dash 18 dash 32.” That is the number of the section in the draft ordinance where the protections were located.
After a mind numbing few hours of that, Commissioner Johnson moved to recommend that Council establish a waiver process for existing affordable units. That would be to replace what he called “4 dash 18 dash 32.” Felicity Maxwell, an appointee of Council Member Ryan Alter and a board member of the YIMBY group AURA seconded. Fifth term commissioner Awais Azhar, now an appointee of Mayor Kirk Watson and renowned by “progressives” as an affordable housing guru, offered his support.
The motion then passed eight to zero with three abstentions. I would like to report who voted how, but consistent with their opaque, amateurish approach, the commissioner chairing the meeting (name not visible on the replay screen) did not announce the vote count.
By the way the Commission, early in the meeting, voted down a postponement request from Commissioner Alberta Phillips who argued that the Commission and others in City government make mistakes when they get in a hurry on major issues. “I think that the intention is good, but this is not how you do the public’s business in sunshine. This is how you do it in the dark when you’re doing it in a compressed period of time.”
“I think that the intention is good, but this is not how you do the public’s business in sunshine. This is how you do it in the dark when you’re doing it in a compressed period of time.”
Planning commissioner Alberta Phillips
Right to Return vanishes when DB90s make it to Council
The measure then went to Council, posted on the February 27, 2024 agenda for discussion and on the February 29 agenda for a vote. When the item was called up at the February 27 work session, Andrea Bates of the Planning Department informed the Council, as reported above, that staff ran into concerns at the Planning Commission about the provision to protect existing affordable housing, and that “stakeholders” (read apartment developers) were “surprised” by the provision. After consideration, Bates explained, the staff was recommending to remove the right to return provision entirely.
Only soon-to-depart Council Member Alison Alter raised concerns about this recommendation. The move drew particularly glowing praise from Council Members Natasha Harper Madison and Chito Vela. For instance Vela explained his support for the change, “I just want to be careful about trying to kind of get too much, and then the developers would be, ‘you know what, we’re just going to go with the base zoning and we’re going to change our project,’ and then we lose the 10, 20, however many affordable units that we would get otherwise. So I do think we have to be very careful about the calibrations on those affordable housing programs.”
“I just want to be careful about trying to kind of get too much, and then the developers would be, ‘you know what, we’re just going to go with the base zoning and we’re going to change our project,’ and then we lose the 10, 20, however many affordable units that we would get otherwise.
council member Chito vela
Late in the discussion there was also a somewhat mysterious set of questions from Council Member Zo Qadri.
Qadri asked, “Just a quick question for clarification’s sake; related to the right of return policy. It’s a great policy, but I understand DB90 would not apply to that. Is that correct?”
Bates replied that “the current staff recommendation. . . would not have a right to return provision.”
“OK, great, thank you” replied Qadri who then yielded the floor.
Two days later, on February 29, 2024 the Council then passed the DB90 ordinance with Alison Alter voting no and Mackenzie Kelly abstaining.
To summarize, the DB90 ordinance went to the Planning Commission with a right to return provision which was backed by staff. The appointed, but unelected, Planning Commission objected and recommended a waiver process. Then, somewhere along the way, “stakeholders” (read developers) expressed surprise that the right to return policy was in the draft ordinance.
By the time the DB90 item made the Council agenda a little over two weeks later, staff was recommending to drop the right to return provision entirely. The Council readily agreed with all but two voting yes.
It seems very clear here that some decision was made behind the scenes during the two week interim. And the Council supermajority rubber stamped it. (The Austin Independent submitted a set of Public Information Requests that request communications to and from the staff and the Mayor and Council regarding DB90s — hoping to find out more about how this happened. Any results from that, however, will not be available until — at the earliest — a day or two before the May 22 meeting.)
It seems very clear here that some decision was made behind the scenes during the two week interim. And the Council supermajority rubber stamped it.
There was at least one other exchange of note that took place during the Council discussion on February 27. That was during the back and forth between Bates and Council Member Natasha Harper Madison. Bates told Harper Madison that it was possible that staff could return with a new version of tenant protections by the end of the year (2024). (That didn’t happen and no Council Member, nor the Mayor, appears to have done anything to make that happen). Bates added that in the interim, “Council can always consider the facts of the particular property when a rezoning case comes before you.”
In other words the Council could consider each zoning case on its merits — like the Acacia Cliffs case pending before them now. There appears to be zero consideration of this approach among the current Council supermajority. We will discuss that more shortly, but first let’s hear from some residents of Acacia Cliffs.
A Barbecue at Acacia Cliffs
On April 29 the newly formed tenants association at Acacia Cliffs held a barbecue and press briefing, at the picnic area, next to the pool, at the complex. I visited with several residents. All were hoping to somehow save the apartment complex, but they had differing approaches and thoughts.
One internal section of Acacia Cliffs – photo by Daryl Slusher
Lawrence Seil shared an oped he had written. He concentrated on both the immediate situation and the larger picture. For instance, he began, “I could have sworn that one of the most despicable acts that civilized society could perpetrate is to turn citizens out of their house and home.” He also bemoaned the overall fate of Austin: “Knocking down cultural icons is bad enough, and a good/sad reason for falling out of love with this city. But above and beyond that, and apparently inspired by iconoclasm, a new idea for the advancement of the future seems to be gaining traction as a legitimate business model: knock down places where people live, knock down places where law-abiding citizens have lived for a long time, drive people out of their houses and homes and make them live somewhere else. They might even move somewhere that we’ll eventually get around to knocking 5 years from now. And on and on and on. It’s starting to seem like nothing is safe or sacred.”
Acacia resident David Land explained that he understands that the property owner wants to get more money out of the property, adding that he knows that is how the system works. He just wishes that the property owner would agree to make a little less money and make it possible for existing residents to live in the new complex.
I also talked to a woman who lives at the complex with her partner and their two kids. She said her partner works nearby on Far West. She asked that I not use her name.“If we had to move far away it would really shake up out plans for everything.” She said she was planning to send her kids to schools in the area and added, “Their best friends are here.”
She also talked about the natural beauty of the area, the nearby parks and the walkability of the neighborhood. “The hardest part,” she said, “would be telling my kids we have to move.”
Another resident, Rosa Gutierrez, spoke at a subsequent press conference on the steps of City Hall on May 8. Gutierrez explained that she is new to Austin. She moved here from Arizona to be near her daughter and “grandbabies.”
“I’m at the stage of life where I want to be a Grandma,” she said, adding, “I wanted my daughter to have the peace of mind that she can call on me day or night.” Gutierrez said she spent three months looking for a place to live before finally finding Acacia Cliffs and worries that she will not be able to find anything else to suit her needs. She added that many of the residents at Acacia Cliffs work during the day and can’t attend Council meetings; where zoning items are now taken up at 2 pm.
Duchen calls for further postponement and a redo of DB90
The night before that press conference Council Member Marc Duchen, who represents the District that includes Acacia Cliffs, posted an Acacia-related item on the Council Message Board. He called for a further postponement of the vote on Acacia, writing, “Like many other Austinites, the families and individuals living in Acacia Cliffs are hardworking renters living in an increasingly expensive city. Postponing the May 22 vote would provide them with more time to reach a reasonable and meaningful arrangement with the developer, one that ensures that our most vulnerable residents have access to housing they can afford in Austin.”
Ducen added: “I believe the main cause of the Acacia Cliffs emergency is DB90, an ordinance that was designed to improve local affordability but, when impacting naturally occurring affordable housing, has worsened affordability since it went into effect last year. In cases that don’t involve naturally occurring affordable housing, it can create affordability where there was none – which we always need! But in cases like this DB90 gives land developers the freedom to demolish affordable housing in exchange for a woefully inadequate preservation of affordable units. This is antithetical to the affordability issues that DB90 was intended to address.” Duchen listed some proposed amendments, although none of those restored the right to return.
The Austin Independent asked Whellan if his client would support Duchen’s requested postponement. “We want a decision,” he said. However, in a written reply to a different question, not related to Duchen’s postponement request, Whellan wrote, “Price Realty (the owners) has recognized the difficulty this may pose and has sought to inform residents about the rezoning case and the timeline of the redevelopment process, and to propose a tenant assistance package beyond what the city requires.” Too much should not be read into it, but mentioning a package that goes “beyond what the city requires,” could be an opening for further negotiations.
As of press time no other Council Members had responded to Duchen on the Council Message Board. The Council supermajority attitude toward the case was perhaps best reflected in comments at the earlier April 10 Council meeting, during discussion of whether to grant a standard two week postponement request or to grant a longer postponement until May 22 to give the tenants time to try to negotiate and/or to try to find an affordable housing builder to make an offer on the property.
For instance Council Member Ryan Alter worried that a postponement until May 22 would cause the lobbyist and property owner to withdraw their case and just build under existing zoning. “When a neighborhood asks for a postponement, in this particular instance, I worry that there’s a perverse incentive for the developer to say, ‘we’re just going to redevelop under MF3.” When Ryan Alter said “MF3” he meant the current zoning. He was referring to the scenario that lobbyist Whellan had said the owner would follow if the Council turned down the zoning request. Alter feared that might happen even if a longer postponement were granted.
Clearly not entertaining a no vote, Alter added that if the owner tears down and builds under the existing zoning, “We’re not going to have any affordable housing. . . And, I’ve said it before, 0% times anything is always less than 10% times something.” Alter also saw a vote for the DB90 zoning as the Council providing “consistency.”
“We passed a policy. This adheres to that policy,” he concluded.
What happens from here?
So what is going to happen at Acacia Cliff’s. Although it would be a sad outcome, the most likely outcome is that the zoning request will be approved, the units will be torn down and people will have to find new places to live. The Council supermajority certainly seems poised to make that vote, with perhaps Duchen voting no and maybe, mayoral hopeful Vanessa Fuentes joining him — as long as she knows the item will pass anyway (call me cynical).
Another approach would be for a Council majority to determine that DB90 zoning is not an appropriate zoning for this area. Zoning is discretionary and the Council is free to make a vote like that. This is consistent with the point that staffer Andrea Bates made in February 2024 when she announced that staff was recommending deletion of the right to return provisions. At that time she said that the Council could consider zoning cases individually.
The Council could also argue that DB90 zoning makes sense in some areas, but not this one. They are certainly in the process of approving enough DB90s to make that a credible statement.
The risk in turning down the zoning request would be that Acacia Cliffs’ owner tears down the complex anyway and rebuilds under existing zoning, with more expensive units and no affordable requirements.
That would definitely be a risk for the residents, but tearing down an existing complex of paying tenants and building a new one while Austin has a huge oversupply, or glut, of apartments would be a risky move for the property owner as well.
Another approach would be for Whellan and the property owner he represents to negotiate a way for the residents to get new apartments at a comparable price, similar to the protections that the Council left out of the ordinance.
This is similar to what David Land of the Acacia Cliffs Tenants Association suggests. It’s probably not going to happen either.
As already noted, the most likely outcome is that a Council supermajority rolls this one right through, while congratulating themselves for creating affordable housing.
This situation seems to illustrate the brokenness of local government. There are always difficult choices for the City Council. And their options are constricted by limited power and state laws. But, couldn’t the City Council and our community, come up with a better solution than just sending the existing Acacia Cliffs renters out searching for a new apartment — an apartment that might be one of the next to be torn down?
Addendum – City Hall Rally and Disruption
I couldn’t figure out a way to work this into the lengthy article above so I am adding it here. As noted in the article, I attended the May 8 press conference on the steps of City Hall where some Acacia Cliffs residents joined with activists led by Community Powered ATX. After speeches many of the group went inside to the Council meeting where things took a harsh turn.
The group filed into the Council Chamber as if to listen to the item the Council was considering, but after a few minutes one of the leaders stood up and blew a very shrill whistle. Other protestors then began chanting. Rather amazingly the first chant was about how they needed more from Council Member Marc Duchen, the only Council Member who had been seriously working with them on the Acacia situation. Security guards herded the group out of City Hall.
I just want to say that I have been heartened by the young activists at Community Powered ATX. They are very committed and smart and capable, but, I think they made a mistake here. For decades City Council meetings have often featured harsh rhetoric and fierce disagreement. In my view, however, the Council Chamber needs to be a place to deliberate, and to disagree, but not to disrupt the proceedings. That’s even more true if you are trying to persuade somebody to negotiate with you. Most anyone will be wary of entering negotiations with someone who might pull out a whistle and shrilly blow it at any time, as a signal for others to begin chanting.
Some Acacia residents evidently took part in this, but many of them are inexperienced politically and suddenly thrown into a situation where they could get evicted. They were clearly following the activists’ lead on this action. They made a mistake, but that should not doom their overall cause.
- This story was updated to correct that Erica Leak is with the City of Austin Planning Department, not the Housing Department; and to add that Krista Laine was not on the Council when the original DB90 vote was taken.
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