Council Recap: Land Code Revision Advances to Final Round

Late-night second-reading vote features familiar 7-4 split

Photo by John Anderson

After three days of debate, the Austin City Council advanced its effort to rewrite the Land Development Code to the third-and-final stage late on Thursday, Feb. 13, in a 7-4 vote that has become a familiar split on the dais in the land-use debate.

Council Members Kathie Tovo, Alison Alter, Ann Kitchen, and Leslie Pool were once again in the minority on the final vote, which followed a series of defeats for the LDC-skeptic bloc on many of the more than 80 amendments proposed to this second draft of the propoaed new code and map.

Staff will now take the amendments approved by Council and produce a third draft. Before that is done, they will release “translation tables” which explain how existing zones translate into new zones, expected sometime in late February. The third reading vote is expected in late March.

CMs in the majority passed amendments that will allow for bigger duplexes; a modification to the preservation incentive that will reduce the minimum age of structures eligible for participation from 30 years to 15; an option for developers to pay into a fund, in some cases, instead of providing dedicated parkland in projects between 1.66 and 6 acres in size.

An effort from the minority to prohibit Transition Zones in areas where localized flooding poses a risk failed; amendments to halt missing middle zoning in some parts of the city until sidewalk or transit improvements were planned also failed.

Speaking to the obvious division on the dais, Mayor Steve Adler said after the vote, “It’s apparent that there are seven people on this Council to pass the code.” He added that he remained optimistic that a compromise could be reached to bring some from the minority into the majority, but acknowledged, implicitly, that the pro-density bloc can pass the code without the minortiy’s support. “I recognize it will be hard,” Adler said of finding a compromise path. “You’re going to have to come up with a reason, or multiple reasons, for the majority to compromise in ways they don’t have to in order to pass a code.”

The second-reading disputes over changes to the draft code mostly mirrored the LDC debate for the past eight years. The majority, generally more pro-density than the minority, want the code to facilitate the construction of new housing to the greatest extent feasible. That's the rationale for changes like allowing for more impervious cover on individual lots (which staff has repeatedly said will not significantly increase the risk of flooding citywide), or allowing developers to waive requirements to provide open space or parkland if they commit to building more housing, or the most heated issue of the moment – allowing for the construction of denser missing-middle housing in what are currently single-family Transition Zones near, but not on, major corridors.

Conversely, the minority have been unconvinced by staff that the impervious cover increases won’t increase flood risk, particularly localized flooding after new infill development. (The city's Watershed Protection Department has done modeling that shows the risk of localized flooding to be, in their professional opinion, “de minimis.”)

The minority is also weary of allowing developers to opt out of constructing on-site affordable housing in some projects, so long as they contribute a “fee-in-lieu” to the city's Housing Trust Fund. If a goal of the new code is to create more affordable housing, they argue, why not require developers to do just that? An amendment from Tovo to disallow the waiver of on-site affordable housing requirements in one of the Transition Zones (RM1) was rejected.

The majority has pointed to LDC staff's repeated assertions that developers will choose not to participate in a bonus program – the primary way the code can help produce affordable housing under state law – if they are required to construct on-site units at below-market rate prices. In those cases, a fee-in-lieu could allow builders to contribute something to the goal of affordable housing instead of nothing at all – particularly with a code that generally increases base entitlements throughout the city. Moreover, fees-in-lieu can be leveraged with other housing dollars, like low-income housing tax credits, and dispersed throughout parts of the city where it may be more expensive to build income-restricted housing.

As their arguments continued to fail to gain any traction, the four CMs in the minority at times showed exasperation with their colleagues's unwillingness to debate policy questions they feel have been litigated repeatedly on and off the dais. Wednesday's discussion featured a sharp exchange between Adler and Alter, when the mayor compared those predicting flood disasters under the new code to climate change deniers.

“People don’t link the science to the facts,” Adler explained. "It’s really unfortunate because the number of times we repeat it over and over and over again … people think that there’s a link (to increased flood risk).” Later, Adler added that testimony before Council on the issue has consistently shown no link between severe flood risk and increased density, even in Transition Zones. "Yet, we're being asked to consider amendments that draw a link between localized flooding as if that were related to” increased density, he said. "But, all of the science we’ve heard...does not support that.”

The District 10 councilmember, who considers herself a staunch environmentalist, was not pleased with that comparison. Alter said the “tenor of the meeting was indefensible,” and that the way “those of us who have constituents who are concerned about this code are being treated is inappropriate.” She concluded: “Sorry if we’re asking questions about a 1,300-page document that was dropped less than two weeks ago. That is our job. We were elected to vet this. And I’m sorry that you have a timetable where this has to be railroaded through.”

If the ultimate outcomes of these votes were unsurprising, a hypothetical compromise tossed out by Adler surely was. Late into the debate on Wednesday, before taking up an amendment from Tovo on Transition Zone depth, Adler asked, seemingly out of nowhere: “If you had the opportunity to decrease all of the Transition Zones in the city” to two lots deep, “would you vote for the rest of the (LDC) rewrite?”

Tovo was clearly taken aback by the offer. “Yes, I would give serious consideration to supporting a proposal that eliminated much of the Transition Zones,” she ultimately responded. That would seem like a non-starter to the other six voters on Adler's side, but on Thursday when the topic came up again, CM Jimmy Flannigan said, “I’m open to this conversation. I won’t support this now, but it won’t stop the conversation, obviously.”

Staff has estimated that increasing the buffer between Transition Zones and nearby single-family zones by 300 feet (an approximation of two lots deep) would reduce housing capacity by 400 units. As currently mapped, the Transition Zones account for just 2% of the property in Austin and would account for a little more than 10,000 of the 351,000 to 410,000 new units enabled by the staff's second LDC draft.

The surprise offer from Adler was given more context when Tovo announced near the end of debate on Thursday the she, Kitchen, Alter, and Pool would soon bring forward a plan offering an “alternate path” toward reaching consensus on a comprehensive code revision. None of the CMs offered details on what that plan would entail, but in a statement issued early Friday morning, the four wrote, “In the next several weeks, we will introduce a plan that builds on the District Level Planning amendment adopted at First Reading. The plan will offer a path to build broader, citywide consensus on the code.”

After the vote, Mayor Pro Tem Delia Garza reflected on the idea of compromise in light of the urgent need to deal with inevitable population growth – expected to double over the next two decades. “If we didn't want anybody coming to Austin, it wouldn’t matter, because they are coming. And if we don’t plan for that, we are pushing people out.”

“In everything we face in life there are trade-offs,” she added. “We cannot have this utopian vision where we think everybody’s going to be happy with every single line of this code.”

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Austin City Council, Land Development Code, Steve Adler, Delia Garza, Jimmy Flannigan, Kathie Tovo, Alison Alter, affordable housing, density bonus, Transition Zones, missing middle housing, localized flooding

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