Local NewsCourt Rules Austin Zoning Plan Violated Public Notice Requirements

The city council violated state code when it failed to notify individual property owners about a rezoning plan.
March 18, 2022
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An appeals court ruled the Austin City Council cannot circumvent public notice requirements to revise its Land Development Code (LDC) with a simple majority vote — a process it began in 2019. 

The appeals court agreed with an earlier trial court decision that ruled against the city government.

The revision, part of the CodeNext initiative that began in 2012, is an attempt to loosen housing development restrictions to increase the housing supply. At loggerheads is the goal of opening the door for more multifamily dwellings, like apartment buildings, versus the desire to preserve typical single-family-home neighborhoods.

Austin’s housing market demand is exploding while the supply remains stretched thin — begetting the outrageously expensive listings and exacerbating the city’s affordability problem.

But this decision is a blow to that one strategy aimed at putting downward pressure on housing prices.

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The city’s zoning commission published a notice of its October 26, 2019 hearing in the newspaper, convened to discuss revisions to the LDC. They did not notify individual property owners about the hearing and specifically stated that zoning protests, a mechanism for property owners to object to specific zoning decisions, were not permitted on “comprehensive revisions.”

Despite that warning, citizens filed 14,000 protests against the plan.

Shortly afterward, 19 property owners in Austin sued the city for violating public notice requirements in state code before the council could give the plan final approval.

The court ruled in favor of the property owners, finding that the city abridged its notice requirements set in statute. “The zoning statute’s notice requirements ‘must be rigidly performed,’ and if the statute requires written notice that the City Parties failed to give, then the actions taken without such notice are invalid,” the opinion reads.

The code reads, “Before the 10th day before the hearing date, written notice of each public hearing before the zoning commission on a proposed change in a zoning classification shall be sent to each owner.”

The city first contended that no individual notice was required because home-rule municipalities are only required to put notice in the newspaper for zoning regulation. But the court objected to that position citing the specific requirements for zoning commissions, different from zoning regulations passed by the council only.

“The City Parties’ only notice argument based on the statutory text is that the written-notice provision of § 211.007(c) applies to ‘a proposed change in a zoning classification,’ whereas the LDC Revision is not a single proposed change to a single classification,” the court added.

Moving forward, the court ruled that a three-fourths majority of the 11-member council is required to pass any zoning changes that have been protested by 20 percent of the affected property owners. The original plan was only supported by seven councilmembers, two less than the supermajority needed.

The ruling could be appealed to the Texas Supreme Court, but no indication of that has yet been made from the city.

Mayor Steve Adler told the Austin American-Statesman, “Whatever the final outcome in the courts, our city’s most pressing challenge is still housing affordability and increasing housing supply. City Council needs to hear from the city attorneys about our options at this point.”

At a South by Southwest panel this week, Adler said, “We have to increase the housing supply” through reforming the development code.

One argument for preserving more strict zoning laws is that multifamily housing units cause neighborhood home values to depreciate. A counterargument is that zoning laws make construction more costly — the more red tape that exists, the higher the ultimate price tag. And when supply wanes while demand jumps, prices soar.

Austin’s population is booming and that creates serious growing pains for a municipality going through metamorphosis from a mid-sized city to one of the state’s largest.

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Brad Johnson

Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.

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