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Can you protest changes to your property under the land code rewrite? City says no.

Monday, October 28, 2019 by Audrey McGlinchy, KUT

City of Austin lawyers are refuting the claims of an Austin nonprofit that has been campaigning for property owners to protest the possible rezoning of their land under the city’s land use code rewrite.

“City officials plan to rezone your home and neighborhood,” reads a flyer circulated by Community Not Commodity, which opposed the city’s previous land code drafts, written under a process dubbed CodeNEXT. The bottom of the flyer reads: “File Your Protest Online by Dec. 5:”

On the website residents can endorse a form letter to Austin City Council saying they object to their neighborhood’s rezoning, a right that Community Not Commodity argues is enshrined in Texas law. Filing a successful protest would then require nine of the 11 Council members to overturn the objection, the nonprofit says.

But lawyers for the city have several times argued that the citywide rewrite is more akin to a general policy change and does not afford residents the same protest rights as in smaller, more targeted rezoning cases.

“Zoning protests may not be used to protest broad legislative amendments,” then-Assistant City Attorney Brent Lloyd wrote in a memo to the mayor and Council members on June 15, 2018. “This includes comprehensive revisions, like CodeNEXT, and amendments to general development standards applicable citywide or throughout one or more zoning districts.”

That same reasoning has cropped up in two memos written this year by Mitzi Cotton of the city’s Law Department, one of which was sent to Mayor Steve Adler and City Manager Spencer Cronk on Thursday in response to Community Not Commodity’s campaign.

When asked to provide specific cases backing the city’s argument, Cotton said she could not, but that the city “did a thorough review of the law.”

Council members voted to scrap CodeNEXT last summer, with Mayor Steve Adler saying the process had been plagued by “misinformation.” Council members voted on new goals for a code earlier this year and city staff released the latest version this month.

Local attorney Fred Lewis, who said 600-700 homeowners have filed protests through the Community Not Commodity website, said the right to protest one’s zoning absolutely applies in this case.

“The protest rights apply when it’s your property that’s affected,” Lewis told KUT. “People aren’t objecting to the code being changed, they’re objecting to their zoning being changed on their property.”

Lewis has made this argument in court before, when he sued the city in 2018 to get a petition-driven referendum that would require the city to put code rewrites like CodeNEXT on the ballot.

Lewis argued in court that zoning changes to specific properties require certain procedures – written notice, a hearing and the right to protest – and that a citywide decision like CodeNEXT is ultimately a legislative one, and the same rights aren’t afforded to property owners.

When the city draws maps applying new zoning categories to individual properties is when this changes, Lewis argues, and protest rights are valid.

“People have rights. The city doesn’t want to recognize the rights. We’re going to find out if (property owners) have rights,” said Lewis, indicating that this could lead to another lawsuit if City Council doesn’t acknowledge the right to protest.

Council is scheduled to take an initial vote on the new Land Development Code Dec. 9.

This story was produced as part of the Austin Monitor’s reporting partnership with KUT. Photo by Gabriel C. Pérez/KUT.

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