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Habitat for Humanity, Environment Texas weigh in on land code lawsuit

Thursday, March 12, 2020 by Jo Clifton

Travis County District Judge Jan Soifer heard arguments Wednesday from attorneys for 19 Austin homeowners who sued the city over the new Land Development Code. The homeowners filed rezoning protests, but the city denied their requests for a hearing. The plaintiffs claim that by filing a rezoning protest they can force City Council to hold a separate hearing on changing the zoning designation for each piece of property in the new land code. Attorneys for the city dispute that claim.

The judge said she would take the case under advisement, meaning she will take as much time as she thinks is necessary to ponder her decision.

Community Not Commodity, a group led by activist Fred Lewis, has encouraged homeowners to file protests against their new zoning. They argue that the simple majority vote taken to adopt the new Land Development Code is insufficient. Instead, they argue that it should take a supermajority of Council to adopt a new code, because it takes a supermajority to adopt an individual zoning change when the property owner objects.

Not only does the city strenuously disagree, but Austin Habitat for Humanity and Environment Texas Research and Policy Center also disagree, filing amicus curiae – or friend of the court – briefs to support the city’s position. Both groups see the protests as a way to prevent the city from changing the current code because it would be impossible to hold individual hearings on all of the challenges.

According to the Environment Texas brief, the nonprofit group and the people it serves will be impacted by whether the city “can replace its decades-old Land Development Code with a new code that confronts the climate crisis and other contemporary challenges.” The brief goes on to describe environmental problems resulting from Austin’s fast-paced growth, including traffic congestion and air and water pollution “as more undeveloped land is converted into new development.”

The code revision, the group argues, will help to “house a growing population in ways that minimize the increase of developed land. Compact development can deliver tangible benefits for the environment – reducing energy use and greenhouse gas emissions, curbing the flow of polluted runoff into streams and lakes, and protecting natural areas and agricultural lands.”

In its brief, Austin Habitat for Humanity says it is close to building its 500th home in Central Texas, and has repaired 345 other homes as well as providing counseling to thousands more. “Austin Habitat’s mission, and the lives of those it serves, will be impacted by whether Defendant City of Austin can replace its decades old Land Development Code with the new code that confronts the housing crisis and other contemporary challenges, because the affordability challenge before us is not one that Austin Habitat can handle alone. We recognize that meaningful progress on making it affordable for the people we serve to live in Austin can only be made possible by modernizing a Land Development Code” that was adopted in 1984.

Both groups go on to argue that the city’s position is the legally correct one. They also argue that state law requires that owners of 20 percent of all land covered by the new ordinance must file protests “in order to trigger the supermajority voting requirement.”

So far, Council has voted twice to adopt the new Land Development Code with seven of its 11 members agreeing. If the court agrees with the plaintiffs, two of the four Council members opposed would have to vote in favor of the new code on the third and final reading. Given the strong opinions expressed by Council members Kathie Tovo, Leslie Pool, Ann Kitchen and Alison Alter, it seems unlikely that any of them will change their minds. But if the city and its supporters are correct about the 20 percent requirement, Community Not Commodity would have to gather considerably more signatures to prevent adoption of the new code.

USDA photo by Heather Hartley.

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