City Sued Over Land Use Code Revision

Photo by David Brendan Hall

A lawsuit filed on behalf of more than a dozen property owners around Austin could pose a challenge to City Hall's effort to finalize the revised Land Development Code in March. The suit alleges the city is violating a state law requirement that property owners be notified when their lot or a nearby lot is seeking a change in zoning, and that the neighboring owners be allowed to protest the zoning change if they don't think it's a good fit for their neighborhood.

The city's Law Department argues that the law does not apply to comprehensive rewrites of the entire code, such as the one that was approved by City Council on first reading Dec. 11, and that the city is not required to individually notify property owners of the specific changes to each property – essentially, every single one in the city – and of their right to protest, nor are they required to recognize protest petitions. It's unclear what case law the city is citing in reaching that opinion, but it says, "the weight of the authorities on this issue supports the position that individual landowners do not have protest rights when a municipality seeks to enact a comprehensive revision of its zoning classifications and associated regulations."

But that hasn't stopped people from sending in protests of the proposed zoning changes; when city officials last counted in July, there were about 7,441 "protests" filed over email and physical mail. The city is not officially recognizing these filings as protests, since they do not think they are legally required to, but they are holding on to them.

The lawsuit was brought by attorney Doug Becker, with Dove Springs homeowner Frances Acuña as the lead plaintiff – although other familiar names in the crusade against an LDC rewrite are also listed as plaintiffs (Fred Lewis, Susana Almanza, and Mary Ingle, among others). The suit is seeking two actions: that the city be required to notify all property owners affected by the LDC Revision, and that the state law allowing for zoning protests be recognized; meaning, if enough property owners banded together to file petition against their zoning, three-quarters of the City Council would need to approve the changes.

The revised LDC would require nine votes on final approval, then, instead of a simple majority of six. So the pattern of 7-4 votes on amendments, and on the whole code at first reading, wouldn't mean much. And the four in the minority – Council Members Kathie Tovo, Alison Alter, Leslie Pool, and Ann Kitchen – would have much more leverage to achieve policy goals that have been repeatedly rebuffed up until now.

But that's still speculation at this point. As of press time Wednesday, Dec. 18, the city had not yet responded to the suit. And it's not yet clear how the court would recognize a valid protest – would it need to be 20% of all property owners in Austin (as the city's attorneys think could be the case – about 10 times the number filed at last count)? Or would a protest by 20% of property owners around a specific lot require 3/4 Council approval for just that lot? (We shudder at the thought of how that would complicate the already maddening LDC rewrite.) That's in addition to any right property owners would have to challenge the rezoning of their own lots.

Either way, Becker says, a ruling from the court could inspire many more people to file protests. "There are already thousands of protests," Becker told us, "but [the city] has chilled the right of landowners to protest. Once notice is sent out and people learn they can file protest, the number of protests will grow."