Property owners objecting to Austin’s land development code rewrite sue city for rejecting their protest rights

A group of property owners seeking to interrupt Austin’s current effort to rewrite its land development code has sued the city for taking the position that individual property owners cannot officially protest the zoning changes proposed for their property in the rewrite.

The group, which includes Mary Ingle, Fred Lewis, Barbara McArthur, Pat King and James Valadez, filed the lawsuit Dec. 12, less than 24 hours after City Council gave preliminary approval to the proposed overhaul of its land development code. The effort, which has gone on since 2012, includes a new code—which governs what development can occur in the city and how—and new zoning maps, which determine where development can occur.

The zoning maps have been controversial for many property owners, as the proposal aims to allow increased housing density in many existing single-family neighborhoods. This speaks to a central goal of the code rewrite—increase the city’s housing capacity to meet the skyrocketing demand on the city’s currently limited housing supply, which has exacerbated affordability issues. Several property owners in neighborhoods receiving increased housing density said they are concerned the changes will destroy the physical character of their neighborhoods, displace current residents, overload infrastructure and create traffic problems.

In the weeks leading up to City Council’s first official vote on the proposed land code changes, the issue of one’s right to protest a zoning change proposed for his or her property came up multiple times. State law provides the right of individual property owners to protest a zoning change to their or a neighbor’s property. If 20% of the landowners within 200 feet of the property in question protest the change, the change could only be approved with a three-fourths supermajority passage from City Council.

That law relates to zoning cases for individual properties; however, Austin’s legal experts have said the right to protest does not cover a wholesale rezoning of the entire city. As such, the city has refused to recognize with an official process the many protests relating to the rewrite. One of the lawyers representing the plaintiffs in the lawsuit said although many protests have come in, many more have not because of the city’s position that protests are not legitimate in this case.

“We fear that, if a court recognizes protest rights ... the city then will contend that residents that didn’t file protests in reliance on the city’s misstatements have lost their protest rights,” Douglas Becker of the firm Gray & Becker PC said in a statement. ““The city legal department cites no Texas cases to support their position that there are no protest rights when the City enacts a comprehensive vision of the land development code. ... There is no such express exception in the state law. The City has imagined an exception that does not exist so that it can ignore Austinites’ property rights.”

On Dec. 12, the city doubled down on its position.

“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,” city spokesperson Shelley Parks said in a statement.

The plaintiffs in the case are seeking judgment that the property owners have a right to protest, and that the city, just as it does in individual zoning cases, notify all property owners within 200 feet of any property proposed for a zoning change. City staff has said the latter would come at a significant financial cost to the city.