City Costs for Outside Legal Counsel in Land Code Fight: $121,000

The City of Austin could spend as much as $121,000 in legal costs battling homeowners over rezoning of their properties as part of the comprehensive overhaul of the city’s land code.

A majority of council member today approved a resolution modifying a legal services contract with Scott Douglass & McConnico, hiking the price by $61,000 to a total contract amount of $121,000.

Council members Leslie Pool, Kathie Tovo, and Alison Alter opposed the resolution, while Ann Kitchen abstained. “I don’t believe we should waste taxpayer money on outside attorneys to deny people the right to valid protest,” Pool said.

The contract relates specifically to the case Acuña et al v. City of Austin et al, in the 201st Judicial District Court of Travis County.

Plaintiffs brought the suit immediately after the City Council in December passed on first reading a land code overhaul, which is set for two more votes in the coming months.

They claim that they are entitled to a right to protest the rezoning of their properties under the Texas Local Government Code sec. 211.006. This law entitles a group of landowners to protest a zoning regulation or boundary change if they own at least 20% of the affected area of the rezone.

When such a protest is made, the law says that the City Council needs a supermajority vote of three-quarters of all its members in order to pass the zoning change.

That would be problematic for Mayor Steve Adler and other supporters of the land overhaul, because while they have a majority on the City Council they may not have the votes for supermajority.

Pool, Tovo, Alter, and Kitchen are typically more reluctant than the other six council members to increase housing density by rezoning existing single-family neighborhoods.

The City is prepared to fight the plaintiffs in court with a different interpretation of Local Government Code sec. 211.006. They say that the state law provision applies only in cases of rezoning individual plots, not an overhaul of the entire code.

City spokesperson Shelley Parks explained, “The city of Austin’s position is that the weight of the authorities on this issue supports the position that individual landowners do not have protest rights when a municipality seeks to enact a comprehensive revision of its zoning classifications and associated regulations.”

Frances Acuña, the lead plaintiff in the case, said in a news release last month, “I’m suing to prevent my home from being up-zoned against my wishes. The proposed code will not only displace me but also low income homeowners and renters in Dove Springs. In addition, proposed increased impervious cover without updated infrastructure will cause loss of our homes or lives.”