Austin’s appeal to a court ruling against its land development code rewrite process opened Nov. 17 with brief arguments from lawyers representing the city and the nearly two dozen property owners seeking to stop the revision.
Austin’s land development code covers what may be built in the city and where, and the rewrite process has now played out for nearly a decade without resolution. Some officials and housing advocates have pointed to the code, first laid out in the 1980s, as a barrier to expanding new and affordable housing options in Austin.
Both sides’ Nov. 17 arguments before a panel of three justices in the 14th Court of Appeals followed their previous comments at trial and from court filings.
Jane Webre, representing the city, stuck to Austin's assertion that the homeowners' rights to a notice of intention to rezoning and their ability to protest such actions should not come into play if every part of a city is rezoned.
“The [land development code] revision considers the entire city all at once, and the zoning changes turn on broad policy determinations and decisions rather than property-specific factors the way it would be if there were just one small property having a zoning change,” Webre said.
She also said every property in the city would be treated the same regardless of location or other factors, removing requirements used for individual cases.
“We do not discount at all the fact that every property is going to have some changes,” she said. “But the city’s point here is not that people won’t have a significant change, given properties won’t have a significant change, but that the changes will be applied uniformly, categorically.”
Speaking for the property owner opposition, lawyer Doug Becker argued Austin officials' views on its process are irrelevant in the face of the state zoning rules.
“They’ve already stipulated that they have not met the requirements of the statute,” Becker said. “They’re trying to say that this is like new zoning. They’re saying at various times that it is 'similar to,' it’s 'akin to,' it’s 'analogous to' new zoning. ... But the statute must be strictly followed. No exception. There’s no exception in the statute to comprehensive zoning.”
No further action was taken beyond the arguments Nov. 17, and a decision from the appeals court could come in the coming months.
Regardless of that outcome, city leaders are looking to push ahead on individual code changes aimed at housing affordability and simplifying development, according to recent City Council actions. Council could vote Nov. 18 on a proposal regarding affordability in mixed-use developments. A new pitch from Mayor Steve Adler would provide for residential expansion into areas that are commercial only. Those policies and more could come up during a Nov. 30 council work session centered on housing.
Posted Nov. 16, 12:10 a.m.
More than a year and a half after Austin first appealed a judge's ruling against its process to rewrite its land development code, legal teams from the city and an opposition group of local property owners are set to lay out their arguments in court Nov. 17.
City officials and staff had worked for years to craft an update to Austin's aging development code covering what can be built and where around town. That work was stopped due to Travis County Judge Jan Soifer's March 2020 ruling in favor of the property owners amid the rise of the COVID-19 pandemic, and officials voted to appeal Soifer's decision weeks later.
The land code effort had been underway in various forms since the early 2010s, in part to modernize development rules first written in the 1980s and to address growing concerns related to Austin's housing supply and affordability. And while the development code rewrite would have affected zoning for properties throughout the city, the lawsuit centered on the city's process rather than any proposed changes.
When land is up for rezoning, Texas government code requires that cities notify nearby residents about relevant public zoning hearings and allow them to protest. If enough citizens end up contesting the potential change, city leaders are required to pass the rezoning by a higher margin.
During Austin's land code rewrite process, the city said its wholesale code update was not subject to those rezoning regulations and therefore did not individually notify all affected residents or allow any formal protests. Soifer disagreed with the city, holding Austin's process violated state rules and voiding council's initial approvals of the new code.
Doug Becker, a member of the legal team representing the property owners in the case, told Community Impact Newspaper on Nov. 12 that he still views the city's procedure as incorrect and will argue against Austin for its "violation" of state statute.
"The city ... told people, ‘Don’t bother to protest because we’re not going to pay any attention to them. You don’t get to protest this.’ And that’s what we think is wrong; that’s what the trial court thought was wrong," Becker said. "If they rezone one or two or a couple of hundred properties, they have to give individual notice, and they have to honor protests, but if they rezone hundreds of thousands they don’t? That just doesn't make sense."
A representative of the city's legal team did not respond to a request for comment. In written court filings, Austin officials have argued the state requirements are irrelevant given that code changes would evenly affect city property owners.
"The purpose of individual notice and protest is to protect property owners who will be uniquely affected by a zoning change to their specific property. They are inapplicable—a square peg—when every property citywide is affected equally," the city said in a July 2020 brief.
Both sides are set to present 15-minute arguments Nov. 17 before a three-justice panel of the 14th Court of Appeals in Houston. Oral arguments will be streamed live on YouTube.
Whether Austin ends up winning its appeal, city officials may not jump back into full-scale land development code deliberations anytime soon. Council members are planning to review a range of development and housing topics at a Nov. 30 work session that could result in officials considering individual policy changes, rather than a more comprehensive update, over the weeks and months ahead.