Public Notice: Good Riddance

It was almost two years coming, but an appeals court last Thursday rejected the city of Austin's appeal of a lower court ruling invalidating the Land Development Code rewrite originally known as CodeNext.

The decision is a pretty comprehensive dismissal of the city's claims, written by Tracy Christopher, chief justice of Texas' 14th District Court of Appeals. The court ruled that given the way the code was being enacted, the city did indeed fail to give proper notice to property owners regarding changes to their zoning, and that such owners have the right to formally protest the changes – essentially requiring approval by a City Council supermajority rather than a simple majority. The 18-page ruling, unanimous by the three-judge panel, goes into some detail in denying each of the city's claims as "not persuasive" or "beside the point," among other things, adding that the cases the city cited are off point and thus "do not support their argument," and that, in short: "We can see no basis for the City Parties' position in the statutory text."

The city's official response was some ­mumbling about "reviewing the decision" and "deciding next steps," but this has almost certainly driven a stake through the heart of this Frankenstein's monster of a flawed and incomplete code rewrite, cobbled together out of political agendas and wishful thinking, almost killed two years ago by District Court Judge Jan Soifer's ruling in the original lawsuit (Acuña et al v. City of Austin), but kept on life support until now by this frivolous appeal.

Whatever its merits as a social engineering document – pushing city planning toward a much more urban future where condos and transit replace houses and cars – CodeNext was not well designed to achieve its central function. A land development code is there for one basic purpose: to tell property owners and developers what they can and can't build, as clearly as possible, thus smoothing the way for the review and permitting process to be easier and more predictable. The most universal complaint builders have about the current code, especially as it's been amended and re-amended over the years, has to do with its complexity and ambiguity, which in turn adds time and cost to virtually every project that has to walk through the doors at development review. So homeowners bend over backward to avoid having to pull a building permit, and every contractor has a horror story about a project that ground to a halt because of a code issue that wasn't discovered until late in the process. City staff blame at least part of that on a patchwork code with overlays and addenda that make it hard to find all of the regs that may apply to a given property, but what was supposed to be a clean rewrite quickly got freighted with political baggage and pushed by political timelines, so that no iteration of the plan ever got quite finished, let alone scenario tested. What City Council was in the process of passing two years ago was still unfinished, with some fairly major blanks to be filled in later. And while real estate investors and developers were pleased with some of the upzonings and other provisions, many architects and builders were still raising red flags about inconsistencies and unintended consequences, quite apart from the headline arguments over housing density, compatibility requirements, parking, and the like.

But then the whole thing got derailed when its backers' own determination to ride a 7-4 City Council majority as far as it would take them went a couple of steps too far in ignoring the rights of the minority voices. And after losing a couple of pro-development votes in the 2020 election, the supposedly "pro-housing" wing of the Council has been willing to essentially waste another two years on this pointless legal appeal – essentially sitting out an entire election cycle while hoping for a more development-friendly Council after Nov­em­ber – and that tells you how much they're willing to treat housing as a political football, as opposed to actually trying to get a good policy result. Meanwhile the "opposition" wing that was pushing for small area planning to help preserve neighborhoods and target desired development tracts more precisely has been quiet as well, after hinting that they could help point the way to a kinder, gentler zoning solution, with just as much housing potential, better distributed to achieve the goal of "all kinds of housing in all parts of town." No such master vision has evolved, nor has anyone yet ventured to restart the LDC rewrite process until the final nail had been driven into the coffin of the old one. But to its credit, Council has made incremental progress on a few related fronts in that time, though there's much more they could do (see "Public Notice: For Further Consideration..." Oct. 8, 2021).

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Case in point: a major proposed revision to the vertical mixed-use program that Plan­ning Commission voted last night to pass along to City Council – on a split vote, after a public hearing at which I believe not one speaker spoke in favor of the proposal as it stands. Expect more on this soon.