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Activists sue city over zoning code rewrite

Friday, December 13, 2019 by Jo Clifton

Nineteen local property owners filed suit against the city of Austin Thursday, alleging that the city has deprived them of their right to protest under state law as the city adopts changes to zoning classifications throughout the city.

City Council voted 7-4 Wednesday to adopt the new code on the first of three readings. The final reading is not expected before the end of March.

According to Doug Becker, attorney for the plaintiffs, thousands of protests have already been filed, but he is unsure exactly how many there are. The protest group Community Not Commodity, led by Fred Lewis, has encouraged those disgruntled with what they perceive as a plan that will destroy neighborhoods and raise property taxes to file protests.

Lewis is one of the plaintiffs, along with property owners throughout the city who have filed or wish to file a protest against the changes Council is in the process of adopting. Other plaintiffs include Austin Neighborhoods Council leaders Mary Ingle and Patricia King and community organizer Frances Acuña of the Dove Springs neighborhood.

At Tuesday’s meeting, Council members Kathie Tovo and Leslie Pool attempted to add amendments that would allow such protests, but seven of their colleagues voted no.

The lawsuit also complains that the city’s Planning Commission failed to give notice to everyone who would be affected by the new code’s proposed changes. Becker told the Austin Monitor he believes the city should have notified every single property owner in Austin about the changes. “They’ve done it before. They could put a notice in the utility bills, for example, or they can publish a notice in the newspaper.”

Plaintiffs are asking not for monetary damages, but for a Travis County district court to recognize their right to protest under sections 211.006 and 211.007 of the Texas Local Government Code and to order the city not to tell property owners that “valid protest rights are not applicable to their property.” They also want the city to inform property owners of their right to protest.

City lawyers have said repeatedly that citizens do not have a right to protest changes proposed in the new code. On Thursday, a city spokesperson said, “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.”

The other plaintiffs in the case include Susana Almanza, Jeffery Bowen, William Burkhardt, Alecia M. Cooper, Roger Falk, Seth Fowler, Randy Howard, Barbara McArthur, Allan McMurtry, Lawrence Miller, Gilbert and Jane Rivera, John Umphress (the husband of Travis County Commissioner Brigid Shea), James Valadez and developer Ed Wendler Jr.

Burkhardt retired from the Board of Adjustment last summer, after filing a complaint against Assistant City Attorney Brent Lloyd for alleged conflict of interest. Lloyd is now a key member of the team rewriting the Land Development Code.

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Photo by Walker Harris made available through a Creative Commons license.

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