Photo by Gabriel C. Pérez/KUT
An appeals court will hear arguments over Austin’s land code rewrite. Here’s what the case is about.
Wednesday, November 17, 2021 by Audrey McGlinchy, KUT
I can understand if your eyes glaze over at the mention of a “land code rewrite.”
But whether you asked for it or not (and likely you didn’t), if you live in Austin, a case being heard this week in a Houston appeals court affects you.
On Wednesday, the city of Austin is scheduled to appear by Zoom before a panel of judges for the 14th Court of Appeals. The city’s attorneys, in an attempt to course correct on a yearslong attempt to rewrite the city’s building rules, will make the case that the city did not sidestep state law when drafting new zoning laws.
If you’re confused, I got you.
What is a Land Development Code? And why is Austin trying to rewrite it?
Consider the land you live on. How many housing units are on it? How tall is the building you live in? Is there a driveway? How far back from the road does the structure sit?
None of these attributes are products of happenstance. They exist within a set of rules – thousands of pages of rules – that are referred to as Austin’s Land Development Code. (You may have also heard the term “zoning.” Each plot of land has a zone, and certain land code rules apply to those zones.)
In 2012, City Council members approved a plan for Austin’s future, called Imagine Austin. In it, city staff, with input from residents, identified parameters for how the city should grow, including building denser housing closer to public transportation routes and in designated parts of the city.
The process to rewrite Austin’s Land Development Code – referred to, at one point, as CodeNEXT – began at the same time. The idea was to lay out how the city would implement some of the goals stated in its long-term plan. These goals included making it possible to build more houses and different kinds of housing to accommodate the city’s booming population.
This rewrite started almost a decade go. Why has it taken so long?
Opposition from citizens and elected officials alike has slowed the city’s attempt to redefine the rules that govern what can be built and where in Austin.
In 2018, Council members scrapped the process, some saying it had been plagued by misinformation; Austin Mayor Steve Adler at the time called it “poisoned.” In an election months later, Austin residents rejected a citizen-initiated attempt to require voter approval of every future land code revision.
With a promise to get the rewrite done, Council members restarted the process, hurling toward a finish line that came into sight in early 2020. But with one Council vote remaining to approve the new land code, a group of nearly two dozen residents sued the city and its 11-member City Council.
Why was the city sued over the rewrite?
The 19 landowners argued the city failed to follow procedures required by state law when rewriting the code.
Texas law mandates that a governmental body individually notify people who own property within a certain distance of land that is being considered for a zoning change. Additionally, these property owners have the right to formally oppose – or protest – this change. If 20 percent of those who own property oppose the new zoning, the change has to be approved by more members of the government body than usual.
“The lawsuit is not about the substance of the revisions to the zoning that the city of Austin wants to make. It’s not directly about whether those were a good idea or a bad idea,” Doug Becker, attorney for the landowners, told KUT. “What the lawsuit is about is that the city didn’t follow the correct procedural steps, and therefore anything that they do at this point is going to be void.”
While the lawsuit is not about the proposed new zoning, many of the residents suing have opposed changes to the land code.
The city of Austin’s argument is that state laws don’t apply in the case of citywide changes to the land code. It relies on the idea that Austin’s land code rewrite is similar to initial zoning, or the first time a city adopts zoning across its properties; in that case, the city is not required to issue notices or allow protests.
Jane Webre, an attorney representing the city in this case, said while state law gives property owners within a certain distance the right to protest zoning, it’s harder to define this distance when the entire city is involved.
“Where you rezone the whole entire city, what’s the area? What’s the applicable area for protest rights? Is it the whole city?” Webre said. “The fact that you can’t logically apply it is sort of further indication that those provisions don’t apply to this kind of revision of the Land Development Code.”
What did the first court decide?
Travis County District Judge Jan Soifer agreed with the plaintiffs, ruling that the city ignored state law requirements. Soifer’s decision voided the votes that had been taken so far on the code rewrite, essentially returning the city to square one in its attempt to revise its code.
The city appealed the ruling a month later. But because of the pandemic and a change in court venues, it’s taken more than a year for Austin to get a hearing.
What are the possible outcomes of this appeal?
If the panel of judges in Houston sides with the city of Austin, City Council could pick up where it left off – just one vote away from approving a new land code.
“The city would discuss next steps with Council, whatever the decision,” Andy Tate, a city spokesperson, wrote in an email.
If the judges instead side with the residents suing, Council would likely have to start the rewrite process over – if at all.
A ruling is not expected for at least several months.
This story was produced as part of the Austin Monitor’s reporting partnership with KUT.
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