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The city’s rewrite of its land use code heads to court (again)

Monday, March 9, 2020 by Audrey McGlinchy, KUT

Lawyers representing a group of Austin homeowners will argue in court this week that landowners have the right to formally protest the rezoning of their property under a citywide land code rewrite.

If the court sides with them, it could mean that a portion of the city’s land would be exempt from a broad rewrite of zoning rules currently being hashed out and voted on by City Council members.

“Our lawsuit doesn’t directly challenge the specific provisions of the new proposed code,” said Doug Becker, who filed a lawsuit in December on behalf of 19 homeowners. “We’re challenging the way the city has gone about it.”

Under state law, property owners can challenge changes to the zoning of their land or nearby land. If they do so, a three-fourths vote of the local governing body is required to override that protest and let the new zoning be applied. In Austin, that means nine of the 11 city council members would need to vote against any protests in order to stop them.

But the city’s legal team has maintained that legal protest rights are not valid under a land code rewrite, which affects every piece of land. City lawyers have argued in memos, on the city website and to Council members that a comprehensive code rewrite is a policy change and thereby landowners are not guaranteed the same rights as in smaller, more specific rezoning cases – such as a neighbor going to the city to ask that the zoning on their land be changed.

“With the comprehensive revision,” Deputy City Attorney Deborah Thomas told Council members in December, “Council is looking at a bigger picture: What do we want our city to look like in 20 years? What overarching goals do we want the code to effectuate?”

The answers to those questions as envisioned in a new code, she argued, is not subject to legal protest by individual homeowners.

But lawyers for the homeowners suing the city say there is no difference between someone’s legal rights in the rezoning of one neighborhood or an entire city. By not allowing protests, the city’s process of rewriting its Land Development Code is invalid and they need to start over, said Becker.

The city has spent the last eight years revising its rules on what can be built in the city and where. Council members took the second of three votes in favor of the proposed new code in February; a final vote is expected in late March or early April.

This is not the first time the city’s land code rewrite has gone to court. Among the plaintiffs in Monday’s case is attorney Fred Lewis, who sued the city in 2018 over its refusal to put on the ballot a petition asking residents if they wanted the right to vote on any citywide revision to the land code. Lewis said Friday that property owners have filed roughly 15,000 protests over the rezoning of their property either through a local nonprofit group’s website or directly with the city.

If the court upholds property owners’ rights to legally protest, the Austin City Council may not have the votes to veto these objections. It would require nine of the 11 Council members voting to override, and so far, the two votes taken to ratify a proposed new code have been split 7-4 in favor.

Update: Though originally scheduled to be heard Monday, Lewis confirmed to the Monitor that the case is now tentatively rescheduled to Wednesday, with the date and time to be confirmed Tuesday.

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

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