Breaking the Code
Plain English Is the Goal for Land Development Rules
illustration by Doug Potter
Like our highly involved citizenry and our staggering bond debt, Austin's onerous Land Development Code has become the stuff of local folklore. Unlike those other sacred tenets, however, this one is actually true. We haven't had a turnout of over 20% in a local election since 1994, and our per capita bond debt is lower than in many Texas cities. But Austin's land-development process really does suck. More specifically, say those who know and care, Austin's Land Development Code - Chapter 13 of the Austin City Code, and its attendant regulations and procedures - are cumbersome, burdensome, micro-managed and nano-regulated, and of course highly politicized. And way too long: At 600+ pages and growing every week, the LDC is longer than the rest of the City Code combined.
And, worst of all, it doesn't work. Despite decades of trying to keep up with, let alone guide, development trends and pressures, Austin's ever-more-elaborate land regulations have only spawned a lot of dumb growth, painfully inflicted on the local body politic. So, naturally, the Smart Growth forces want to fix the system. Hence the newly convened Smart Growth Focus Group, tasked with midwifing a new, streamlined, reorganized, and "plain English" Land Development Code.
That sounds peachy, until you realize that the current LDC is only a few years old, an attempt to make sense of the leavings and traces of years of land spats and market forces. Awkward and ineffective though it may be, the Land Development Code isn't exactly obsolete. To fix it, the Smart Growth battalions will have to change our approach to growth and government - and thus make the Code obsolete.
A Textbook Case
It would help to take a brief spin through the existing LDC, just so you have an idea what the Smart Growth Focus Group, and the associated city staff and officials, are working with. Remember before we start, though, that the City Council is asked every couple of weeks to amend the LDC, so there's always something new.
The code is structured thus: Chapter 13 of the Austin City Code (the LDC) has "articles," each of which is divided into "divisions," within which "sections" are numbered serially. Once upon a time, the code had a regular numbering scheme - Section 13-5-25, governing construction near Moonlight Towers, is the fifth item in the second ("20") division of Article 5 (transportation, which includes city rights-of-way, which includes Moonlight Towers) of the Code.
This regularity has been destroyed with subsequent amendments, so that now we have an Article 3A, divisions separated into "parts," and subsections, some lettered, some numbered. The Save Our Springs ordinance, for example, is codified in Sections 13-7-36.1 through 13-7-36.13, but is actually part of Division 5, rather than Division 3, of Article 7. Now that you're thoroughly confused, you understand one reason why LDC reform is a rallying point - right now, you need legal aid just to navigate it, let alone figure out what applies to your project.
And every article, and nearly every division, of the Code contains some provision that applies to your project, whatever it may be. These are foreshadowed in Article 1, which contains - among much administrivia - the overall "purposes" of the Code itself. The first of these is "to protect, promote, improve, and provide for the public health, safety, comfort, convenience, and general welfare of the present and future citizens of the City of Austin."
That sounds like a sufficiently blanket statement of purpose, but no, there are nine more purposes. The LDC also:
- ensures the "safe, orderly and healthful development and expansion of the city" (uh-huh);
- protects and conserves natural resources;
- prevents overcrowding and avoids "undue concentration or diffusion of population or land uses," i.e., slums and ghettos;
- preserves sites of historical, cultural, and architectural importance;
- "lessen(s) congestion in the streets" (uh-huh);
- facilitates "adequate and efficient" provision of infrastructure;
- provides "meaningful opportunities" for public participation in development questions;
- promotes economic development; and
- protects water quality from non-point source pollution.
As the last, highly specific item hints, each of these planks is included as a separate "purpose" so that the LDC can go on, in detail, to address it.
Since the LDC is supposed to do everything but butter your toast, it contains more than 1,000 (far more, if you count the subsections separately) different provisions. Article I goes on to discuss the LDC's relationship with the city's "adopted Comprehensive Plan." That would be Austin Tomorrow, but that plan predates the City Charter requirement that Austin have a comp plan. As such, Austin Tomorrow was not designed to fill the role it's now been assigned, and the LDC is picking up much of the slack.
"We've tried to do all land management through the zoning ordinance and the Land Development Code," says Tracy Watson, the city's development process manager, "whereas a lot of other cities take care of some of those activities through ongoing planning. So that's why we have the level of detail that we do."
Nowhere is this clearer than in Article 2, "Land Use," which makes up nearly half of the total LDC and, among other things, explains the city's 40 different zoning categories (technically known as "base districts"), along with the 15 different overlays (or "combining districts"). Much of Article 2 is devoted to simply explaining what these 40 districts and 15 overlays are and why we need them, all of which could - and should - be part of a comprehensive plan.
As is typical, structurally, throughout the LDC, a prospective developer - say, someone who wants to build a duplex on an SF-3 lot in the central city - cannot simply look up "SF-3" or "infill" or "duplex" and find out if it's permitted (it is) and what additional criteria (such as off-street parking) the project must meet. Instead, there are at least 24 (by this non-lawyer reporter's count) separate sections that may pertain to such a project in Article 2 alone, not counting any that might be triggered in specific locations, such as within a historic district. Add to that number the provisions in other articles involving transportation (which would include parking), drainage, utility service, building codes, or environmental protection, and you understand why development lawyers and engineers are so powerful in this town.
According to Tracy Watson, fixing this structural problem may be a hallmark of the touted "plain English" Code revision. "Right now, we have chapters on subdivisions, zoning, transportation, and so on. "We could start instead with a chapter on `infill residential development' that included everything a developer would need to know. There's a pretty good chance we'll end up with something like that."
Also remember that there are volumes of regulations (mostly included in the City's "criteria manuals") that elaborate on the Code, many of which - again, scattered throughout the entire corpus - could affect your one little duplex. And that these regulations are administered by multiple city departments and reviewed or adopted by multiple boards and commissions, some of which can, others of which must, approve parts of your project. It's no wonder that the city employs full-time staff people, in its Development Assistance Center, simply to tell prospective developers how to attempt to create the project of their dreams.
The application for a development assessment - which is basically an intake mechanism, designed to tell developers what they need to provide to whom, and does not constitute an approval of any kind - itself runs 14 pages, not counting supporting materials. This assessment then leads to additional submissions and a blizzard of paper. One famous figure, from an earlier attempt at re-engineering the land-development process, holds that a single project can require up to 64 separate permits from 32 different agencies.
"You think you're getting a permit from the City of Austin to build your project, when really you're only dealing with a fraction of the departments and entities you need to work with," says Ben Heimsath, chair of the Citizens Planning Implementation Committee (CPIC), which begat the current LDC-reform effort. "The developers and the neighborhoods become human ping-pong balls bouncing from one agency to another."
Naturally, all this is a disincentive to the small developer seeking to do an infill project, which is exactly the kind of growth we've now dubbed Smart. "Infill is usually done by smaller developers who don't have the lawyers and resources to do all the cross-referencing and multiple filings that you have to do now," says Watson. "If we've agreed that infill is good, and that we should provide incentives for it, a big incentive is to get the heck out of the way, and make the code and rules as quick and painless and cost-effective as possible."
Ironically, though, the current reform effort sprang not from infill but sprawl - our subdivision rules, and the impact upon them of Senate Bill 1704. This anti-Austin act by the Texas Legislature requires cities to allow developers to build their projects under whatever ordinances - read, in Austin's case, water-quality rules - were in effect when the projects were first born.
This would not have been a problem if our ordinances set a time limit beyond which your project, unless built, ceases to exist in the city's eyes, and you have to start over under the laws currently in effect. Under the current code, this day never comes for residential subdivisions; once you've platted one lot (which, right now, doesn't require building the house itself or even the infrastructure leading to it), the entire subdivision exists in perpetuity, no matter what may have transpired in the meantime. So, even though it may take a developer 10 years to get his act together and build, he would still only be covered by the rules in effect when he conceived the project a decade earlier.
When SB 1704 was accidentally repealed last session, the city took it as an overture to get serious about reforming the Land Development Code, and what started - with last year's ad hoc 1704 task force - as a quick fix of the subdivision rules has now become the Smart Growth juggernaut. So far, the Focus Group has mostly tread familiar ground. As Assistant City Manager Toby Futrell, leader of the city's overall Smart Growth staff team, puts it, the meetings so far "have been about things that have already been done. Our problem is that we haven't done a particularly good job of implementing anything. So now we're pulling out the handful of things that we need to change to get the biggest bang for our buck."
In the process, the Smart Growth effort has swallowed up, and is being nourished by, the work of the Citizens Planning Committee (CPC). "Many of the things we point to as problems with the Code are really just symptoms," says Heimsath. "The problem is endemic to the way we draft regulations, and what we expect from those regulations. We [the CPC] spent three years priming the pump, making the case for a larger assessment and redesign of our process, and creating some specific programs that showed what could be done. That would have been where it stayed were it not for the SB1704 crisis - which forced the new mayor and council, early on, to delve into issues that past councils had left on the back burner." The CPIC, successor to the CPC, was supposed to have been disbanded by now, but will continue to meet as part of the Smart Growth effort; two of its members sit on the Focus Group.
One of the "specific programs" to which Heimsath refers is neighborhood planning, currently entering the second year of its pilot phase, and an essential tool, he and others feel, for solving the LDC mess. "Were we to say there's an urban core with certain development standards," he says - referring to the Smart Growth map of development zones - "then when you got down to a neighborhood, you'd have more specific standards in a neighborhood plan for what's appropriate there. If your project doesn't match those, the city should have a way to say `Go build somewhere else.' Conversely, if I can bring in a project that I can demonstrate, quickly, is in accord with a neighborhood's standards, then why should I go through the hoops?"
It will be a while - certainly longer than Futrell's fast track will accommodate - before enough Austin neighborhoods have adopted plans to make the LDC's detail redundant. But such plans would address two big problems that have hindered LDC reform in the past.
One is what's typically described as the "one-size-fits-all" approach that requires all developments, whatever their intent and impact, to follow the same tortuous road to approval and permitting. Since our process basically presumes that development is unpopular, will likely be opposed, and needs to be closely watched every step of the way, this screws up folks who want to build "good" developments or, commonly, rehabilitate existing property in established neighborhoods. It also fails to account for the endless local variations in our physical and cultural geography that may make a development perfectly acceptable to one neighborhood and repellent to the folks 10 blocks away.
Chances are, if once upon a time someone blew heavily enough about a single case, whatever pissed them off is now regulated, restricted, or outlawed, even years later in another area with a completely different set of priorities. "Most of what we have as a process was not designed as a process, but was put in place as a reaction to specific crises," says Heimsath. "Specific parties were traumatized and, after the fact, the council created new code language, or new programs, or new departments, as a solution. The Code is the scar tissue that's left over from all our past battles."
The other big political factor, not unrelated to the first, is Austin's pride in having tougher standards than other communities - in other words, we have all these hoops for a reason. Mostly, though, the Code's detail has created not a higher quality city, but an elite class of experts, on both sides of the political fence, who can play the system to their benefit. "Actually, we only have unusually different standards in water quality," says Watson, who has collected comparative data from other cities as part of the Smart Growth effort. "Drainage may be a little more complex here than elsewhere, but in most cases the variables are fairly standardized. A street is a street."
Nevertheless, much time and paperwork goes toward monitoring and micro-managing these mundane facets of development. One example, often cited in Smart Growth talk, is the city's practice of reviewing in detail - and, in effect re-doing - "sealed work," the drawings that engineers and architects submit with their professional seals attached, which means they can lose their licenses and be sued to the gills if the work turns out to be faulty.
"There's a lot in the code and the rules that would be seen as picayune, setting up hoops we don't have to jump through to maintain tough standards," Heimsath notes. "But these hoops got there because there used to be something less prescriptive, and someone took advantage of it. Stakeholders need to review them one by one, find a better way to do business, and change the language accordingly."
Many developers, including some represented in the Focus Group, feel that the problem here has less to do with the Code and more to do with mismanaged or dilatory city staff and departments, and Futrell has indicated that reform will touch not just what's on paper but what's practiced as well. Yet obviously, the unwieldly Code and rulebook we labor under slows down city staff as well. "The departments that administer the Code have their own imperatives, but cleaning up the Code itself would be a huge weight off everyone's shoulders," says Heimsath.
Pushing for Reforms
City staffers have tried to push through reforms before, says Watson, who's been a key figure in the city's planning-and-development system for years. "We had the opportunity when we created the current Code to do some substantial revision and simplification," he says, "but at that point the Council and management directive was to not make those changes, but simply to combine the separate ordinances into a single code. Then, in 1991, there was the Development System Improvement process, which was far more substantial, but less than half of those proposals were adopted. Some were too controversial to deal with."
Right now, Smart Growth has momentum, and Futrell aims to keep that momentum going by cherry-picking and fast-tracking key proposals, rather than creating "a three-year, labor-intensive, mind-boggling process." But most observers seem to agree that Futrell's September deadline for changes, even assuming all of those are accepted and adopted, will still leave much that's broken in the Land Development Code unfixed. "We certainly won't be able to make all the changes we identify," Watson says, "partly because of the timeframe, and partly because not everyone agrees with what we think is appropriate. We have stacks of ideas from staff that would be practical, but that are too minor to focus on in this timeframe.
"But if we can make major changes and clear away some of the smoke, then we can have momentum to get the small, annoying stuff out in a Phase 2" of LDC reform, Watson says. "I'm about as enthused as ever at the chances of getting something done."