By Daniel Van Oudenaren
The latest attempt by the City of Austin to overhaul its land code may meet its fate not in the sleek, modernist Council chambers downtown on Cesar Chavez but farther uptown in a wood-paneled, windowless, fifth-floor courtroom where attorneys gathered March 11 to argue over a 1926 law.
There, attorneys representing the city and plaintiffs suing to block the draft land code sparred at a hearing before District Court Judge Jan Soifer. At issue was not anything substantive about the new code but whether the city has followed state law in its process of adopting it.
Thus far, the City Council has passed the land reform through two readings and needs only a third vote to make it law, a step that’s expected in April.
If that happens, many properties across the city will be upzoned for higher density, a change that proponents say is badly needed in order to bring down home prices and rents in a city that is now booming with affluent tech workers and other high-income newcomers.
For years, development-minded council members and the mayor, Steve Adler, have tried to enact such changes. With the second-reading approval of the new code in February, they are on the cusp of achieving that — the closest perhaps that they’ve ever come.
But attorneys representing homeowners opposed to the changes contend that the city made a fatal error in the rezoning process.
Under Texas Local Government Code sec. 211.006, a group of at least 20% of affected landowners is entitled to protest any zoning change that affects their properties. When such a protest is made, the City Council can’t enact the zoning change without a supermajority vote of three-fourths of the Council, which in this case is nine of the eleven members.
But in Austin, the city government has denied homeowners the right to this form of protest. “The city has refused to entertain protests,” said Douglas Becker, the plaintiffs’ attorney.
‘Zombie Code’
At the hearing, an attorney representing the City, Jane Webre, sought to explain why this protest statute didn’t apply to the city’s code rewrite. She contended that the state law would apply only if a property owner was “uniquely affected” — not if the entire city was affected.
Webre cited a number of other Texas cities that have overhauled their zoning regulations without accepting homeowner protests under sec. 211.006.
Reassured by these precedents, and confident in its line of argument, the city’s legal department last year gave the green light to the Council to vote on the new code, even in the face of impending litigation and without acknowledging the protest rights of thousands of Austinites.
They may have counted their chickens before they hatched. The hearing March 11 did not seem to go well for the city.
Judge Soifer was quizzical and skeptical in her questioning of the city’s attorney. “So if you harm everyone the same then nobody should get to protest?” she asked.
Later she reiterated, “So your argument essentially is: if only a small number are affected then they have the right to notice and protest, but if a large number are affected then they don’t have the right?”
At another point she said, “I’m having a hard time understanding why something that affects hundreds of thousands of people instead of a small handful of people doesn’t have the same requirements of notice and protest.”
Another possible point of vulnerability in the city’s case is its contention that it isn’t actually repealing the old code. If it were to acknowledge that the rewrite involves a “repeal” of the existing code, then the state law would apply.
Local Government Code Sec. 211.002 says that the protest mechanism is available to citizens whenever a zoning regulation is “amended, repealed, or [otherwise] changed.”
Webre, the city’s attorney, said that the City Council was adding an entirely new chapter of code that would “supersede” the existing land code. “The old one will sit there kind of as a zombie.”
Judge Soifer said, “I’m not sure I understand the difference between repealing it and superseding it.”
‘Start Over And Do It Right’
Of course, it’s too soon to tell how the judge will rule, and she herself noted that she had only recently been assigned the case and had not yet had the time to read through all of the voluminous filings by the two parties.
Becker, for the plaintiffs, requested that the judge make a declaratory judgement ordering the city “to start over and do it right,” requiring formal notice to all affected homeowners. Failing that, the city should be required to recognize the protests of landowners, triggering the three-fourths rule.
That would create an “absurd” burden on the city, the respondent attorney argued, saying that the proper place for citizen protests was the City Hall, where a long process of public engagement has already taken place to influence the Council in its deliberations over the code rewrite.
But the plaintiff attorney insisted that the city had no right to ignore the protest mechanism enshrined in state law. If it wants to override those protests, it must pass the new code by a three-fourths majority.
That’s a bar that the pro-development camp on Council probably can’t meet, since they have only a narrow majority. At best, the land code process would be delayed by months, or even years, and would result in an extremely watered down version that made far-ranging concessions to preservationist council members like Ann Kitchen and Alison Alter.
What’s Next
In all, a ruling in favor of the plaintiffs would be a crushing blow to Mayor Adler and the urbanist, pro-development camp.
Ultimately, the matter comes down to a Texas law that dates to the time of Calvin Coolidge. The statute has change little over the decades, apart from an amendment in 1987. After Soifer decides the matter, the case could go to the 3rd Court of Appeals in Austin.
The judge didn’t say how long she would take to rule, noting only that she would “take this matter under advisement and rule as quickly as I can.”
The Austin City Council has authorized the expenditure of up to $121,000 on legal expenses for the case. Attorneys for firm Scott Douglass & McConnico are handling the case, which is called Acuña et al v. City of Austin et al.
Altogether about 30 or 40 people attended the March 11 hearing, including a sizable number of longtime homeowners, neighborhood association leaders, media, and city attorneys.
Against the right wall of the 90-year-old courtroom, a set of black-and-white photos memorialized a very different Austin. Webre, the city’s attorney, said that the land code is desperately needed to bring the city into the future.
If the judge rules that the city followed the wrong process, and requires it to meet a supermajority standard to pass the land code, that hoped-for future will be imperiled, she said. She told the judge, “I hope you will see that applying the individual notice and protest provisions to a comprehensive land development code revision would be absurd.”
The plaintiffs’ attorney retorted, “Even if you want to hold the opinion that it’s too hard or absurd, that’s what the statute requires.”
