City Loses Court Challenge Over LDC Protest Rights

A Travis County district judge has voided the first two City Council votes on Austin’s effort to rewrite its Land Development Code, because the city failed to meet two state requirements relating to zoning changes: provide written notice to property owners affected by the code overhaul and provide a way for them to protest the changes.

Council's third and final vote on the LDC rewrite had already been postponed indefinitely in the wake of social distancing measures to combat the COVID-19 pandemic, but now the future of the rewrite – which has spanned eight years and cost millions of dollars – is in even more flux.

The ruling from District Judge Jan Soifer last night, March 18, has the potential to alter the balance of power in the Council debate over the LDC. Since the new pro-housing Council majority began working on the code revision in 2019, they have used their power to gradually push for new development rules they believe could make Austin more affordable for people on the middle-and-lower levels of the income spectrum.

In that march toward a new code, the 7-4 majority has not had to compromise on issues they feel have been settled – notably, the mapping of Transition Zones in central city neighborhoods to accommodate "missing middle housing" – but Soifer’s ruling means that if the code rewrite is to continue, such compromises are more likely. By granting affected property owners (i.e., every owner in the city) the protest rights afforded under state law, Council would need to adopt the new code with a supermajority – nine votes, instead of six - to overrule those protests. Under state law, owners have the right to protest changes in their own zoning; more challenging for a citywide code rewrite is the right to challenge rezoning of someone else's property, if the owners of 20% of the land area within 200 feet object (i.e., a "valid petition").

The city will also have to notify affected property owners - again, every owner in the city - of potential zoning changes, the upcoming land-use commission and Council hearings when they will be considered, and their rights to protest and the process for doing so. That aspect of the ruling is less troubling for LDC Revision backers - notice could be provided on Austin Energy bills - but the right to protest could pose problems beyond the political. If many owners protest the changes to their own zoning, and especially if they organize to challenge the rezoning of whole neighborhoods (which could in turn prompt counter-protests by owners who support the proposed changes to their own zoning), the code rewrite could get mired in a web of public hearings and individual court challenges that would effectively grind the process to a halt.

The city responded to the ruling in a statement: “While we are disappointed in the ruling, we appreciate the court’s thoughtful consideration of this matter,” a city spokesperson wrote. “In light of the judge’s decision, we will assess our options, and will advise Council accordingly.”

As for Council members, their attention is (understandably) elsewhere and not so focused on the LDC – a sign of how sweeping the impact of the new coronavirus has been on our community, as land use has been the dominant issue in Austin politics for most of the past decade. Some in the majority told the Chronicle that they have not had time to process or take a close reading of the ruling, because their offices are focused on responding to need stemming from the growing number of COVID-19 cases in Austin.

“I don’t think anyone on Council is thinking about the LDC right now,” CM Greg Casar told us. “I don't plan on thinking about it or working on it during this stage of the pandemic response.” As part of that response, Casar released a document of resources available to Austin residents, compiled by his office (available in English and Spanish). Others are looking ahead while working on their responses to COVID-19. CM Leslie Pool said in a statement that she “did not celebrate any loss for the City of Austin,” but, “The judge ruled that the City violated state law – the clear precepts of required notice and protest rights.” As council moves forward on the LDC revision, she said, “our future actions must be grounded in community inclusion and agreement, given the high stakes.” But, now’s not the time for that discussion. “I will urge my council colleagues to take a breather from the LDC,” she said, “and turn our attention to crafting meaningful assistance for our residents and struggling businesses to shore up the resiliency of our community in this difficult and uncertain time.”

CM Ann Kitchen – who was once considered a swing vote on LDC policy but has since voted much more often with the minority on Council than the majority – told us she is ready to find a compromise that can get the code across the finish line via “a process that reflects and builds on community consensus. We need a new Code,” she added. “We need better choices for housing affordability. I believe there is absolutely a path to passing a revised Land Development Code.”

What that compromise could look like is unclear at this point, but as we reported in February, it could involve a citywide reduction in Transition Zones – a persistent aim of those in the minority, especially CM Kathie Tovo, who represents many of Austin’s central neighborhoods. Tovo agreed with her colleagues in the majority and minority: “Whatever we do next on the [LDC] is going to be on the backburner for an indefinite period of time. But when we do have time, I am going to continue encouraging what I have all along: building community consensus” on where density should be encouraged and how much the revisions should be driven by small area planning.