City Hall Ready for Liftoff on New Land Use Rules

Photo by David Brendan Hall

As City Council prepared to take the first of the three votes required to approve a new Land Development Code, the same conflicts that have animated land use debates in Austin for years were again front and center. How should the controversial transition zones between mixed-use corridors and single-family neighborhoods be mapped? How much parking should developers be required to build? How much potential flood protection should the code sacrifice to allow more impervious cover and thus a greater supply of housing stock? And how can the city ensure that increasing the housing supply will make living in Austin more affordable to families?

In deliberations scattered over multiple days of meetings and work sessions, Council members crafted and debated amendments to this draft that are designed to influence the next draft and map, to be released by staff in early 2020. The tone of the meetings remained largely civil, if plodding, with some Council members frustrated by reopened debate on issues thought to be settled.

As the Chronicle went to press on Wed­nes­day, Dec. 11, Council found its way to a first-reading vote that had originally been planned for Monday, Dec. 9, thanks to several detours into the weeds amid discussion that had been intended to remain high-level. Many of the amendments approved so far include language like "consider" or "analyze," directing staff to explore ideas and report back with potential changes to the code and map in future drafts before the new LDC gets its third and final reading next year.

As such, many issues remain unsettled, but discussion on the dais and votes on the amendments themselves have clearly shown the will of the Council majority. In a series of 7-4 votes, including the first-reading vote, CMs Kathie Tovo, Ann Kitchen, Alison Alter, and Leslie Pool have formed the minority, just as they did earlier this year when Council debated and drafted its first policy guidance to City Manager Spencer Cronk and his LDC revision team. (Kitchen was more often a swing vote back then than she has been this time around.) As the process continues to unfold and Council prepares for a second-reading vote in early 2020, here's where we stand on some of the thornier policy issues, and where they appear to be headed as final approval of the LDC looms.

More Housing, More People

In the two months since city staff released the draft LDC rewrite on Oct. 4, the biggest changes have come to the mapping of transition zones – the areas of the zoning map that have long been, and probably always will be, the most controversial aspect of the code rewrite. These zones are intended as buffers between the city's historic and established neighborhoods and its more dense urban centers and corridors served by existing or to-be-built transit infrastructure.

Within these zones, once the new land use regulations are in place, one will see over time more "gentle density" and "missing middle" housing – multifamily residential, and perhaps even some commercial, but closer in size and design to the neighborhoods than to the urban centers and corridors. When you hear the new LDC or the efforts that preceded it described as a "form-based code," that form – size and design – is what's being referred to. (That's as opposed to a "use-based code," which Austin has now.)

Opponents of the LDC Revision outside the Dec. 7 public hearing (Photo by David Brendan Hall)

While the city's Eastside CMs – Natasha Harper-Madison, Pio Ren­teria, Greg Casar, and Mayor Pro Tem Delia Garza – have been strong supporters of increasing Austin's residential density and thus housing opportunity, they rose up against how staff had mapped transition zones in the communities they each represent. Those communities, they pointed out, have already seen plenty of gentrification and displacement pressure as endless waves of new Austinites sought housing they could afford, and extensively upzoning those areas could prove fatal.

Using data and analysis from the Univer­sity of Texas' Uprooted Project, staff adjusted the mapping criteria for transition zones to include fewer properties in vulnerable neighborhoods and more in Austin's "high- opportunity areas" that currently lack affordable housing, typically west of I-35. The changes will allow for more missing middle development – townhomes, cottages and garden courts, and other "gently" dense structures. Building on that is Garza's proposal for an "equity overlay" to protect the existing supply of affordable housing in vulnerable areas, provisions of which have been included in the directions to staff on first reading.

One of the provisions of the equity overlay would remove any additional height allowances on existing multifamily properties – which could help decentivize demolitions of "market-rate affordable" (i.e., not income-­restricted or publicly subsidized) apartments to create more expensive new construction out of reach for lower-income households. Another would require income-­restricted units on-site – not fees paid in lieu of building those units, as many developers prefer – to account for 10% of the total in any new project using the city's affordable housing incentives.

Is Density Always a Bonus?

The draft code proposes a number of such incentives, in the form of density bonuses giving builders increased entitlements – such as added height or reduced parking – in exchange for setting aside income-restricted units or contributing to the city's Housing Trust Fund. (Another amendment from Harper-Madison asks staff to also consider smaller lot sizes in missing middle zones to make home ownership more affordable outside of condo regime setups.)

Density bonuses have been used by the city in several different planning and redevelopment efforts (Downtown, West Cam­pus, etc.); the new code builds them into base zoning that will exist citywide, not just in selected places. But they're still bonuses – incentives for developers who want to participate – not required by law; such regulations (known as "inclusionary zoning") are not allowed in Texas.

The fee-in-lieu option has always caused consternation for preservationist CMs, who see its extension to transition zones as a way for developers to avoid creating the affordable units that the city badly needs and that those CMs' constituents say they would support. "In many areas of my district," Tovo said during this week's deliberations, "we are quadrupling what can be built on those tracts. You can quadruple [the number of units] and have no affordable housing. I think that's not right." Tovo's District 9 includes most of Downtown and West Campus, but also some of the city's most assertive anti-LDC Revision neighborhoods.

Affordable housing providers, along with the city's housing staffers, say that building income-restricted units is often so expensive that developers might forgo the bonus program altogether; allowing the fee-in-lieu ensures the city at least gets something in return. (City staff estimates it takes 3-20 market-rate units to subsidize the cost of one affordable unit, depending on the location and scale of the development.) "There will be lots of places where it is unlikely that [the city could] require an on-site affordable unit, especially in missing ­middle zones," city Housing, Planning, and Policy Officer Erica Leak explained, "and still have people participate in the program."

LDC Revision supporters rally at City Hall (Photo by David Brendan Hall)

With that in mind, CM Greg Casar said, returning to Tovo's example of quadrupling the number of units on one lot, the city could calibrate the fees to generate enough revenue to purchase and preserve that many currently affordable units throughout the city. "If we can get the on-site unit, let's get it," Casar said. "But if the best we can get is hundreds of thousands of dollars in fees for multiple projects, let's do that."

The tension over on-site affordability gets at the heart of one of the most persistent and thorny conflicts in the LDC debate. Tovo and her Council allies, like the voters who support them, are skeptical that increasing density by itself without adequate regulatory controls, policy approaches, or investments will have any meaningful effect on the cost of Austin housing. Unless the city pushes for the most stringent requirements possible to build on-site affordable units – guaranteed to be income-restricted for decades, no matter how expensive the neighborhoods become – they have no faith that housing will be produced.

For the CMs on the other side, though, growing the housing stock exponentially, even without these controls, is necessary to meet the demand in a city that refuses to stop growing – especially in a state that offers few tools governments can use to mandate affordability. "We're trying to address [affordability] in different ways by increasing our supply in addition to subsidized units," Garza said. "But we have to all agree on the fact that people will continue to move here, and if we keep the same housing stock, we are pushing people out."

Flooding, Paving, Parking

Other potential changes to transition zones include increasing allowable impervious cover in the R4 and RM1 zones and offsetting those increases with reductions in single-family impervious cover. A rejected amendment from CM Leslie Pool would have capped impervious cover in transition zones at the current 45%, with increases allowed with the addition of income-restricted units.

Staff in the Watershed Protection Depart­ment estimate that the draft code as prepared by staff (before any amendments from Council) would effectively increase impervious cover citywide by less than 1%. In large part, that increase is offset by new requirements that redevelopments on lots larger than 2 acres include some type of flood mitigation in the form of green infrastructure. Matt Hollon with Watershed acknowledged that staff would need to conduct further analysis on the changes proposed by Council, but those amendments have been guided by the idea of offsetting impervious cover increases so that the overall impact is minimal.

Parking remains a touchy subject as well. The pro-density side of the dais continues to push for more waivers on parking requirements, a move that will leave more land to be developed with housing. Kitchen, Tovo, Pool, and Alter worry over provisions in transition zones that allow for no off-street parking (except as required by the Americans With Disabilities Act) for properties within one-quarter mile of a transit corridor. In some cases, these sites may be in areas that do not have sidewalk infrastructure built out to ensure pedestrians can walk to transit stops safely; an unsuccessful amendment by Kitchen would have required parking in those places. "We have not yet identified funding for all of these sidewalks," she said. "It's going to cause difficulties and be counter to our goals of increasing safety in our neighborhoods."

Another of Kitchen's parking amendments did pass: It would require at least one short-term parking space at sites that serve seniors, to ensure caregivers, meal delivery services, and other providers are able to access seniors more easily. But an amendment from Casar would allow developers to reserve an on-street space for this use instead of having to pave a spot on-site.

In other cases, the four preservationists attempted to strengthen parking requirements, leading to a revealing statement from Casar on how he and his allies view parking in a post-LDC overhaul landscape. The debate was on an amendment from Tovo to retain current parking regulations for properties near schools, which she argued help maintain needed spaces that parents, staff, and volunteers at schools use to facilitate their participation in school events. Casar pushed back, saying that on-street parking could make routes to school safer, because parked cars serve as a buffer between pedestrians on sidewalks and vehicles on the street.

But more to the point, he said, "I know that having on-street parking is hard. ... It's part of the growing pains of the city. I just want us to have more walkable 'hoods, more sidewalks, and mass transit to help with that issue." He added that reducing parking requirements could help the environment by discouraging people from driving and help improve affordability by giving developers more land to build housing on. On Wednesday, Casar and Tovo embarked on a larger discussion of whether not just parking but all of Austin urban infrastructure was sized appropriately for the density allowed by the new code – a debate that has gone on throughout the years of Austin's growth, and one unlikely to be put to rest with the new code's adoption. With the changes and recommendations approved Wednesday in hand, staff will now get to work on updating the map and code before the second-reading vote, likely toward the end of January. A new capacity analysis will also show how Council's changes affect the estimated number of new housing units the map would allow (currently at about 397,000).

The second-reading deliberations will continue to be high-level; based on direction approved by Council during that vote, staff will produce another map (without an updated capacity analysis) to be delivered sometime in early February. Once Council receives the post-second-reading map, they can begin submitting their own versions of the zoning map (likely vetted through neighborhood groups) that will look at specific, lot-by-lot changes. All of these maps will be compiled into an "atlas" so they can be considered as specific items during the third-reading vote, after which the eight-year and $8 million LDC overhaul will be done.