Austin's Land Use Debate Returns to the Spotlight

A new draft code has risen out of CodeNEXT's ashes

By Getty Images / Jason Stout

Fourteen months after the Land-Development-Code-rewrite-that-shall-not-be-named went down in flames, amid squabbles over parking requirements and compatibility standards but also amid the conflict at the heart of the whole debate – how much new housing should be built in and near established neighborhoods – a new draft code has risen out of the previous effort's ashes.

On Friday, Oct. 4, city planners released their initial draft of the Land Development Code Revision – no cool project names given (yet, at least) – and wouldn't you know, many of the same conflicts that doomed CodeNEXT have reemerged as tension points. But this time around, several meaningful factors have changed.

For one, city staff had a much better idea of what Austin's elected leaders were looking for, thanks in part to the adoption of two planning documents: the Austin Strategic Housing Blueprint and the Austin Strategic Mobility Plan, which built upon the 2012 Imagine Austin Comprehensive Plan. Together, the three plans served as guiding lights for staff, illuminating their path as they navigated the grim depths of designing a zoning code and map that prioritizes "all types of homes for all kinds of people in all parts of town," and "a development pattern that supports 50/50 Transportation Mode share by 2039" – that means half of all trips taken will be by means other than driving alone, the overarching goal of the ASMP.

That last bit of language, though, comes from another critical component of this LDC revision process: a series of policy questions posed by City Manager Spencer Cronk to City Council aimed at sussing out just what it is our local representatives wanted his staffers to achieve with the new land use code. The five-question survey posed directly some of the most challenging questions raised during CodeNEXT: How should compatibility standards between single-family homes and other uses be determined; how much parking should developers be required to build; what kind of housing types should the code prioritize; how many units should the city have the potential to build over the next 10 years; and should this effort be a set of minor tweaks, or a wholesale rewrite. The answers in the document approved by Council on May 2 in a 8-3 vote, after much laborious public drafting, seem to have provided staff with all of the insight they needed to deliver a new draft of the code.

That 8-3 vote in May (with Council Members Kathie Tovo, Leslie Pool, and Alison Alter against) represent perhaps the most important, if largely unspoken, post-CodeNEXT shift in the land-use debate: The preservationists have come up short so far in the political fight. The split Council vote in May offered a preview of how votes on LDC Revision 2.0 are likely to play out (with some 7-4 votes sprinkled in, with Kitchen being the swing vote).

The majority on Council was provided thunderous support in November 2018 by Austin voters. Mayor Steve Adler won his reelection bid against former CM Laura Morrison – very much allied with the Council minority on land use issues – in a landslide. The historic $250 million Proposition A housing bond was approved with a whopping 73% of the vote (in an election that saw historic turnout, no less), and the anti-CodeNEXT Prop J, which would have required any future Land Development Code be put on the ballot for a citywide vote, was narrowly defeated. Both candidates who made the December run-off for the District 1 Council seat vacated by reliable preservationist Ora Houston advocated for finishing, and improving upon, what CodeNEXT started, with Natasha Harper-Madison now bringing those views to the dais. Together, the four election results sent a clear message that reverberated through City Hall: Austinites are ready for changes that a new LDC can make possible.

That means this LDC revision is saddled with some lofty goals: helping to make housing more affordable in a growing city; promoting public transportation by allowing people to live along transit networks; protecting the environment in an increasingly urbanizing world – each of which has its own role in confronting the existential threat facing all cities, and the world, in the form of climate change. A revised code can't achieve any one of those goals on its own, but without a modernized framework for how Austin uses its land (the current LDC was written in 1984), those goals will remain out of reach.

Topic A: Housing Capacity

For density advocates, the most pressing problem a new LDC can address is the city's housing shortage. There are not enough homes – of all kinds – in the city to meet our current needs, let alone our continued, projected future growth. A modernized land use code can make it easier for developers to build different types of housing all over the city, while incentivizing them to include as many income-restricted affordable units as possible within each project.

The Austin Strategic Housing Blueprint identifies a need for 135,000 new housing units to be built in the city over the next 10 years, just to maintain status quo conditions in the housing market. In drawing up the new zoning map and code, City Council directed staff to triple that number in capacity, since not all properties will be developed with their maximum number of units all at once, and enable over 400,000 new housing units, alongside the Blueprint's goal of producing 60,000 new subsidized affordable housing units while preserving 10,000 existing unsubsidized ("market rate") affordable units.

Staff didn't quite hit the 400,000 mark; but the LDC revision draft comes close enough to satisfy the more aggressively pro-density wing of the Council. Under the proposed code, staff estimates that 397,000 new housing units could be built in the next decade, with roughly 9,000 set aside as income-restricted housing through density bonus programs – essentially, additional incentives for developers (higher building allowances, less parking requirements, etc.) in exchange for building affordable units.

Clearly, that 9,000 falls well short of the 60,000 mark called for in the Blueprint, but as City Housing Policy Manager Erica Leak explained at a special called Council meeting on Tuesday, Oct. 8, there's no way around that. Participation in density bonus programs that produce income-restricted housing is completely voluntary; if builders can't justify the loss in profit that comes from renting or selling a home below market rate (even with a public subsidy), they don't have to do it. Yes, that means they would not have access to the bonus entitlements that could make a project more profitable, but that may not matter under a code that, by right, allows them to build more housing on most lots throughout the city.

“There is no way an optional [density bonus] program will ever be able to reach the [city’s] affordable housing goal alone.” – City housing planner Erica Leak

"There is no way an optional program will ever be able to reach the affordable housing goal alone," Leak told Council at the Tuesday meeting. "This is the greatest number of affordable units I think the code can provide." The city will need to explore other policies and partnerships that can produce affordable housing outside the scope of what a Land Development Code can do, and in the state of Texas, the tools available to cities to produce those badly needed income-restricted housing units are limited. Inclusionary zoning, as is the standard in other states – requiring developers, by law, to set aside a certain percentage of affordable units in any given development, just as they would set aside land for parks or sidewalks – is not legal in Texas. Neither are impact fees charged, by law, to developers to help build affordable housing projects. Nor does Texas have rent control laws, another tool used in other states to control housing costs for middle-to-low-income residents. Other than voluntary incentive programs, which have been greatly expanded under the proposed code, the city can turn to bond programs to fund construction of affordable housing – such as the historic Prop A – or to Homestead Preservation Districts, a tool created under state law (by Austin's own Rep. Eddie Rodriguez) to help specifically defined lower-income areas. The city can also act to preserve "naturally affordable housing units" – those that have aged to a point that their market-rate prices are affordable to residents living near the median family income.

Bonus Programs That Work

The city currently has over a dozen density bonus programs that offer developers different incentive packages, in different parts of town, for building more housing. Most have not been very successful, and none (except the recently approved Affordability Unlocked program, which primarily will benefit developers of properties that are 100% income-restricted) have been applied citywide. The proposed LDC revision would change that; staff estimates that, currently, only about 5,600 acres of land throughout the city are eligible for some kind of bonus program. Under the new code, that number expands to 30,600 acres.

That won't be enough to entice developers, though; as staff is quick to point out, the programs have to be calibrated in a way that makes economic sense to builders. Striking the right balance between incentives and affordability requirements required staff to consider a variety of conditions, such as the location of a development within the city's different submarkets (or, for that matter, Council districts); whether or not units will be for rental or purchase; and what type of structure will be built (stick-built, high-rise, mid-rise, missing-middle, etc.). If the economics of the bonuses don't work out, they are likely to continue to go underutilized.

Proper calibration of the bonus programs is so critical that Mayor Steve Adler has advocated hiring a planning staffer whose sole job would be to monitor market conditions and adjust the programs as needed. "The ability for this code to work is dependent on us calibrating these programs correctly," Adler told the Chronicle. "As markets change, the calibrations will need to change." It's unclear at this point if the fiscal year 2020 budget could accommodate that bonus program staff member, or if a budget amendment would be required, but it's an idea Adler says he will continue to push.

What happens if the bonus programs aren't used by developers? This is the fear of upzoning skeptics, who envision a future Austin much like the present day in many old urban-core neighborhoods, in which "greedy developers" sweep into a market with high land values and build big, expensive structures using only the increased zoning entitlements – thus evading any affordability requirements – and setting housing prices far beyond the reach of Austinites at the lower end of the income spectrum.

“I believe we have more of a speculation problem, and less of a [housing] supply problem.” – Planning Commissioner Carmen Llanes Pulido

"I don't favor the supply side approach" – that is, the theory that increasing the housing capacity will eventually level out housing prices – "because it drives speculation," Planning commissioner Carmen Llanes Pulido, appointed by CM Kathie Tovo, told us of the code rewrite. "I believe we have more of a speculation problem, and less of a supply problem." Llanes Pulido and others skeptical of the broad upzoning the new code would apply throughout most of the city would prefer the city do more to preserve its existing market-rate affordable housing stock, which will be difficult under a zoning code and map that generally allows more housing to be built in more parts of the city.

Per Council direction, staff included a "preservation incentive" intended to entice builders eyeing a lot for redevelopment to keeping aged structures on the lot. To qualify for the incentive, an existing structure must be at least 30 years old – typically the age at which existing housing stock becomes affordable at market rates – and remain in place alongside other development. If the builder complies with the preservation requirements, they would be granted permission to build a larger structure on the lot, alongside the existing house, with other site restrictions still constricting the project. Llanes Pulido told us she sees the incentive as, overall, a positive, but fears it won't do much to help people on the verge of displacement stay in their homes. "People in those situations, generally, aren't going to have the capital or credit to build a new structure" that could be rented to offset housing costs and keep them in place, she said.

Mapping Transition Zones

One of the most closely watched aspects of the LDC rewrite has been the design and placement of transition zones (often referred to by staff and CMs as "transition areas," perhaps in an attempt to sidestep the stigma they've gained among density skeptics), which act as buffers between neighborhoods filled with single-family homes and the highest-density developments throughout the city.

Although TZs only account for roughly 2% of the total zoning map, staff expects them to have a great impact on affordability, because they offer the greatest potential to develop "missing middle" housing, which offers the greatest opportunity to provide a variety of housing, through mixed forms, available to a range of income levels. (The Blueprint sets a target of 30% missing middle structures for the city's housing stock.) The May 2 Council direction provided a bevy of guidance regarding the zones, including how many lots deep, generally, they should extend into neighborhoods; that they should be located along Transit Priority Networks, where the city's future public transportation is likely to be built out; and that they should permit "house-scale" structures that allow greater density in forms that are more compatible with single-family homes.

For the most part, pro-density advocates have celebrated the implementation of TZs, with some groups already clamoring for the zones to go further, while others acknowledge the need to compromise with neighborhoods worried about the impact upzoning in their areas will have on their homes. At the Tuesday Council meeting, CMs Tovo, Pool, and Alter – the three most reliably preservationist members – called into question how staff chose to map some of the transition areas; with Tovo drawing specific attention to Duval Street, which is mapped within a TZ that runs 10 lots deep on each side of the roadway – well above the 2-5 lot depth recommended by Council as general guidance for drawing the zones.

Looking at the zoning map, it's clear that some parts of town have a much higher concentration of TZs and density bonuses – mostly in the central neighborhoods and eastern parts of the city. This fact has riled up neighborhood groups in the urban core, but LDC rewrite co-lead Brent Lloyd told us that the distribution of TZs was a consequence of the criteria laid out by Council in its May 2 policy direction document. Among those criteria was proximity to Transit Priority Networks or in Imagine Austin's activity centers; location within the urban core or in a High Opportunity Area (as defined by the Enterprise Opportunity360 Index, basically a metric of how much an area needs more affordable housing); or if an area contains a "well-connected street grid." Zoning areas that met more of those criteria were to be upzoned with greater intensity, and Lloyd told us "there were not a lot of areas that met most of the criteria."

Most of the Transit Priority Networks are in the central city and Eastern Crescent, so that played a role in mapping the TZs, although Lloyd said staff attempted to upzone parts of High Opportunity Areas that may not be near transit corridors, but have access to frequent bus service. Vulnerability to displacement also played a role in how intensely TZs were mapped; generally, neighborhoods identified by the UT Uprooted study as susceptible to gentrification were zoned less intensely than other areas. That could explain the deep TZs found in parts of Tovo's District 9, which contains some of the wealthiest neighborhoods in Austin.

Like many portions of the code and map, Lloyd reminded us that we are only looking at a draft, and there is still time for community input and tweaking. "We fully expect conversation and debate to continue on some of these subject areas," the city planner told us on Tuesday, Oct. 8. "We are aware there are some issues with the proposal, and look forward to hearing from Council and the community on how we should move forward."

Two other issues with the design of the TZs will continue to be debated in the public and by CMs: How a lot with a single-family home on it should be developed if that structure is demolished voluntarily, and how much on-site parking should be required on developments within the zones? Initially, staff pursued a policy that would have prohibited property owners from rebuilding a single-family home on an upzoned TZ lot if they voluntarily demolished the structure for a remodel, but Lloyd said robust community feedback persuaded staff to change course there. Now, if a single-family home is destroyed by a natural disaster or voluntary demo, it can be rebuilt as a single-family structure; however, if at any point the single-family home is converted to any type of multi-unit use, the lot cannot go back to single-family use without a zoning amendment.

Greg Casar (Photo by Jana Birchum)
“I am OK with a builder rebuilding a [single-family] home, but I would like to disincentivize that from being a big McMansion. I don’t see that the draft disincentivizes this enough.” – CM Greg Casar

That policy is at some odds with the new code's overall goal of discouraging the construction of new single-family homes, as many observers have pointed out. CM Greg Casar told us it was something his office was paying close attention to. "I am OK with a builder rebuilding a [single-family] home," he told us, "but I would like to disincentivize that from being a big McMansion. I don't see that the draft disincentivizes this enough."

Another proposal that has caused a stir is the general reduction in parking minimums. The goal here is twofold: one, to help the city achieve the 50/50 split between solo driving and all other modes of transportation called for in the ASMP, and two, to free up more land to build more housing.

However, the first goal presents a chicken-and-egg problem: Austin, like most Texas cities, has been car-dependent for decades, and weaning residents from that habit will require much more robust public transit than we currently have. Until that infrastructure is built out more adequately, it's a hard sell to get most commuters to rely on the bus over their car. The opposite side of that argument holds that discouraging people from driving – like, by reducing the number of parking spaces required (and thus available) in a new development – is a good way for a city to grow ridership in its transit services and promote other travel modes (walking, biking, carpooling, remote working, and yes, even scooters).

The merits of either strategy aside, the proposed LDC takes steps to reduce the amount of land in Austin devoted solely to storing cars, by both limiting minimums and imposing parking maximums throughout the city. Residential structures outside of Downtown generally require one parking space per dwelling unit, but under the LDC revision, properties within one quarter-mile of transit corridors and activity centers are not required to contain any general-use parking at all; if a sidewalk connecting to that corridor is not available, they can be developed with half of the parking otherwise required. (All properties must have spaces compliant with the Americans with Disabilities Act, a mandate that supersedes Austin's local codes.)

There are still practical details to be worked out. In mapping lots eligible for reduced parking minimums, staff have not yet considered the street space occupied by the city's curbside pickup services (waste, recycling, and compostables, each set five feet apart along the curb), which can significantly reduce the amount of on-street parking available on pickup nights. Lloyd tells us those are the kinds of details staff will continue to analyze – with public input – as the LDC process moves forward.

The Environmental Impact

Much of Austin's political identity has been defined by its progressive environmental protections, so it's no surprise that ensuring that legacy is carried on through the LDC revision has been on the minds of many code-watchers. But in the years since the landmark Save Our Springs Ordinance passed in 1992, back when opposition to development in general (as an infringement on open space, habitat, and natural resources) was a feature of much environmental activism, what it means to be an environmental progressive has shifted.

In the nearly three decades since SOS, a trove of climate change research has shown that development density – when carried out responsibly – is one of the best ways to reduce carbon emissions in cities. The reasons are numerous: denser communities promote walking and bike riding as viable alternatives to car travel, which accounts for 35% of greenhouse gas emissions in Travis County (per the Austin Community Climate Plan); buildings with shared walls provide better insulation, reducing the energy needed to heat and cool homes (the latter of which will continue to rise with the growing number of record-high temperature days in Austin); and on a regional basis, denser development results in less impervious cover (the most tangible negative outcome of what we call "sprawl").

The question of allowable impervious cover – i.e., the use of concrete and other surfaces that can't absorb rainfall – has been hotly contested within the LDC rewrite debate. The proposed code allows for some missing-middle developments within TZs to have up to 60% impervious cover (up from the current 40%, despite the Council direction from May calling for no increase in impervious cover citywide). The staff report released alongside the code drop last week includes a section from the city's Watershed Protection Department that concludes: "The analysis showed that the draft code and map result in a very small, nominal increase (0.20 percent) in the maximum amount of impervious cover allowed citywide." The report estimates that an additional 360 acres of impervious cover would be spread out over 176,390 acres of land under the new code.

Moreover, the new code and map proposals, which were drafted with estimates from the new Atlas 14 floodplain maps, require developers to build out "green infrastructure" on-site, intended to offset the increase in impervious cover throughout the city. Staff hopes that with greater proliferation of rain gardens and cisterns, biofiltration ponds, green roofs and other pieces of green infrastructure, water quality and retention will improve. In the current code, a redevelopment that does not increase impervious cover is not required to build out any new detention or drainage upgrades, but under the proposed code, redevelopments will be held to the same flood risk mitigation standards as greenfield developments.

Overall, Environment Texas Executive Director Luke Metzger predicts, the proposed code revision will have a positive impact on the environment in Austin – especially in the increasingly dire need to combat climate change. "One of the biggest things we can do in Austin in regard to climate change is addressing our land use code," Metzger told us. "It's critical to reducing car dependency, and we need to do everything we can to discourage climate-busting sprawl."

Now the LDC revision will move forward through public hearings, testing, town halls, and neighborhood association meetings before facing votes at the Planning Commission and, eventually, City Council. The mayor and his allies still hope to take a vote on first reading by the end of the year, with final passage sometime early next year.

The other side of the dais has already called that timeline much too fast for such a dense, legally complicated document (like Draft 3 of CodeNEXT, this version of the LDC rewrite is over 1,300 pages), and they would like the process to slow down for more community input. But the city has been working on some version of the LDC rewrite for the better part of a decade now, at the cost of over $8 million, and for many at City Hall, it's time to move forward.

"What I hear from everyday people in the community is that this process has taken too long, cost too much, and gone too slow," Casar told us earlier in the week. "I feel like we're in such a better place this time around, and I think it's time for us to act."

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