Austin’s new zoning code has its day in court

I finally got around to watching last week’s hearing in Acuna v. City of Austin, the case that for nearly two years has blocked City Council from overhauling Austin’s backwards land development code.

Background

The last hearing on this case was on Wednesday, March 11, 2020, a few days before the world went into Covid lockdown. A couple weeks later Travis County District Judge Jan Soifer sided with the 11 property owners who sued the city. She rejected the city’s argument that a comprehensive rewrite of the zoning code is exempt from the notification and protest requirements that apply to typical zoning cases. Therefore, she ruled, to implement a new zoning code, the city must:

  1. Notify all affected property owners
  2. Approve the code with a ¾ majority if there are property owners protesting the rezoning of their property

When I refer to “protests,” I’m referring to a process often described as the “valid petition.” State law says that City Council needs a ¾ majority to approve a rezoning if it is opposed either by the owner of the property or those who own at least 20% of the property within 200 feet.

The appeal

On Wednesday Jane Webre, a veteran trial attorney hired by the city, finally got a chance to appeal the ruling in a Zoom call before a three-judge panel of Texas’ 14th Court of Appeals in Houston. She argued the court should reverse Soifer’s ruling for three reasons:

  1. Austin’s proposed new zoning code is tantamount to initial zoning, which Texas statute clearly says does not require notice to individual property owners. For instance, if Houston, which currently lacks zoning, wants to adopt its first ever zoning ordinance, it would not be required to provide notice. Nor would its City Council need to pass the new ordinance with a ¾ majority, as is the case in typical rezonings that are protested by affected property owners. 
  2. Individualized notice and protest provisions make no sense for a comprehensive revision. Those provisions are designed to deal with a discrete rezoning that uniquely affects a single property owner and his/her neighbors, not a rezoning that affects every property in the city. If the typical notification process were followed here, the city would not only have to notify every property owner in the city about how their property is being rezoned, but would have to notify them about how every property within 500 feet of them is being rezoned. We’re talking about potentially dozens of notifications per property. 
  3. The Texas Supreme Court held in a recent case, FLCT Ltd v. City of Frisco, that a zoning change that is applied uniformly across the city is not subject to notification/protest provisions. In that case, a property owner sued the city of Frisco over an ordinance that banned alcohol sales within 300 feet of schools.

Just how ‘uniform’ are the new zones?

Chief Justice Tracy Christopher, a Republican, did most of the questioning. She was skeptical that FLCT applied, she said, since in that instance it was a uniform rule change but every property retained its “zoning classification.” She also pushed back on the idea that some property owners wouldn’t be “uniquely affected” by the zoning code overhaul.

Webre countered that Austin’s proposed new zoning code puts in place uniform rules that are applied consistently, much like the alcohol sales ordinance in Frisco. Her home in Central Austin, for instance, is currently zoned SF-3 but under the new code will become RM1 due to its proximity to a major corridor. Any other SF-3 home in the city that is the same distance from a corridor will get the same zoning, she suggested.

“None of these rules are map-based or area-based,” she said. “They are text-based.”

The messy reality is that City Council made this argument much harder for Webre when it asked staff to rezone properties based on “neighborhood typologies,” of which there are four. The typologies refer to the gentrification risk identified in a UT study a few years ago.

Christopher wondered if the city is arguing that it is repealing the existing zoning code and replacing it with entirely new zoning, which could therefore be described as “initial zoning.”

Not exactly, said Webre, who then had the awkward obligation of explaining that some parts of the old code will continue to exist. There will be the new code, Title 23, while the old code, Title 25, “will live in the shadows.” Essentially, Title 25 refers to things City Council didn’t have the guts to change, such as the Neighborhood Conservation Combining Districts in Hyde Park and Travis Heights.

The justices also noted that state law allows the city to comply with notification requirements without contacting every individual property owner. Here’s how: with a ⅔ vote, City Council can take up the zoning case through a joint meeting with the Planning Commission (typically the commission hears it, makes a recommendation and then Council acts on it separately). For some reason in the 80’s state lawmakers came up this weird joint hearing as a substitute for individual notification of property owners. It makes no sense to me.

Webre argued that the joint hearing would result in “terrible policy.” Best practice is for the Planning Commission to review evidence, hear testimony and deliberate independently, she said.

The real problem is not notification. It’s the 3/4 majority

The real reason Council has not bothered with the joint hearing is because it doesn’t actually solve their problem, which is not notification but the protests. Soifer ruled that the property owners protesting the new zoning code trigger a ¾ majority threshold to pass it, and there has never been a ¾ majority in favor of the new LDC.

Plaintiffs: a rezoning is a rezoning

In his remarks, the attorney for the plaintiffs, Douglas Becker, argued that state statute does not treat a comprehensive zoning change as different from smaller rezonings. The Frisco case involved a uniform rule change that applied “districtwide or across multiple districts” but did not result in a change in zoning classification.

In contrast, the proposed LDC overhaul would dramatically change the allowable uses on certain properties. For instance, ten of his plaintiffs, he said, have properties zoned SF-3, but in the proposed new code their properties will fall under five different zoning classifications that will allow various levels of density.

The new LDC does not fall under the “initial zoning” provision of state law and there’s a good reason that statute raises the threshold for approval for rezonings, he argued:

“When you have initial zoning, property owners aren’t zoned yet to be anything. When they buy their residence they know, ‘well I’m not zoned now but I’m at risk of being zoned at any time and a simple (Council) majority can do that…But our plaintiffs are people who bought property in their residential neighborhoods that was already zoned. They have some expectation that that zoning is going to be maintained unless there is a very good reason to change it.”

For the record, this reasoning is completely backwards. Putting in place zoning where no zoning previously existed is a greater act of regulatory violence than rezoning. If you buy your property thinking you can do anything with it and then the city puts in place a zoning ordinance that strictly regulates what you can do with it, that’s a much bigger deal than the city rezoning your property to allow you to build a second unit.

20% of what?

In her rebuttal, Webre argued that the protests that have been filed against the proposed new code should not trigger the ¾ majority threshold because it is practically impossible to determine whether the protesters account for 20% of the land being rezoned. In a typical zoning case, the ¾ threshold is triggered if those protesting the rezoning own at least 20% of the land within 200 feet of the property being rezoned.

So in the case of a citywide rezoning, asked Webre, what is the city to make of these protests? Does it add up the property of all 14,000 protests to determine whether they account for 20% of the city’s land?

We’re probably screwed

I’m not any kind of legal expert, but if I had to guess the court will uphold Soifer’s decision. I think Webre did the best she could with what she had, but I suspect the judges are comfortable with the idea that if City Council wants a new code, it just needs a 3/4 majority. It’s unfortunate that that requirement will prevent the city from taking meaningful action to address a dire housing crisis.

Tomorrow, however, we’ll look at the smaller steps some on Council are taking in the absence of a code overhaul. There certainly are some improvements that can get nine votes on Council that are worth doing, even if they fall far short of what we need.

No Fu**kin Way: The Prop A humiliation

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In a stinging rebuke to a campaign led by local Republicans and the police union, Austin voters sided 68-32 against Prop A, the proposed ordinance that would have mandated a massive increase in the police budget.

It was a humiliating defeat for Save Austin Now, the political action committee led by GOP operative Matt Mackowiak, the chair of the Travis County Republican Party. It also underscored the political marginalization of the once-powerful Austin Police Association, SAN’s chief partner in the effort.

Those leading the Prop A campaign entered the race feeling emboldened by their success six months ago in passing Prop B, which reenacted the ban on homeless camping. They figured that after rebuking city government on one “public safety” issue, Austin’s “silent majority” was similarly eager to fight back against the “defunding” of APD last year.

That turned out to be a fatal misread of public opinion. People were actually just upset about the tents. Austinites do not feel particularly threatened by crime. Save Austin Now’s message –– that the city is overrun by crime ––would probably work in a lot of places. But not in a relatively safe one like Austin.

The ‘people’ didn’t defeat Prop A. But the electorate did

Politics in this country would look very different if every eligible voter voted in every election. Perhaps in many ways that would surprise us. Alas, that’s not how American democracy works. As both Prop B in May and Prop A last night show, in many key decisions, a great majority of citizens forgo their right to take part.

Indeed, it is the ultra-low turnout election that SAN sought. It’s only in such contests that the GOP or the GOP-adjacent have a chance in Austin.

The anti-camping indies no-show

There were a number of factors that led to SAN’s success in May, but one of the big ones was its ability to generate a surge in participation from people who typically don’t vote in odd-year elections or primaries. These voters were disproportionately from affluent western and central neighborhoods who were upset about homelessness encampments. But Prop A clearly failed to resonate to the same degree with those voters, many of whom did not return to the polls in November.

“There was five times as much passion against the tents,” commented one Dem insider a week ago.

This was reflected in consultant Mark Littlefield’s modeling of early voters that I shared yesterday, which showed that 57.6% of early voters had consistent Dem primary voting history, compared to 48.5% of early voters in May. Considering how badly election day went for Prop A, it’s likely that over 60% of the total electorate were D primary voters.

Mackowiak meets the machine

But it wasn’t just the absence of the anti-camping independents that doomed Prop A. Even if they had turned out, the pummeling Prop A took from Democratic voters was too great a wound to recover from.

Equity PAC, the opposition campaign led by Laura Hernandez, activated every part of the local Democratic coalition against Prop A. This aligned with what I anticipated when Prop A was certified in August:

In contrast to Prop B, which many elected liberals remained silent on, I expect this petition to be universally opposed by the local Democratic/liberal establishment.

This puts at risk the public services that liberals cherish: parks, libraries, social programs. And it’s accompanied by a hefty price tag that will put pressure on them to raise taxes — something that nobody wants.

Ultimately, the opposition to Prop A encompassed the full spectrum of local liberal/Dem politics: unions, civil rights groups, environmentalists and every Dem elected official.

And of course, Equity PAC got crucial outside support from major national liberal donors, notably George Soros and the Fairness Project. That money allowed the opposition to mount a field campaign that hit the doors of Dem voters most likely to turn out as well as a major direct mail, TV and digital campaign.

The campaign succeeded in polarizing the electorate along partisan lines. Simply put, hardly any Democrats voted for Prop A.

Granted, Prop A certainly outperformed Trump. I’m not actually sure what Trump got in the city of Austin because only the county results are reported in the presidential election, but a good guess is that he got about 20%. So Prop A’s 32% is significantly better.

But in the highest-turnout Dem precincts that Equity PAC targeted with aggressive canvassing, Prop A was relegated to near-Trump status.

  • At Box 152 in Cherrywood, Trump got 5%. Prop A got 7%.
  • At Box 135 in Mueller, Trump got 10% and Prop A got 15%.
  • At Box 460 (my precinct!), just south of Ben White and east of Menchaca, Trump got 19% and Prop A got 21%.
  • At Box 124 in Central East Austin, Trump got 9.5% and Prop A got 15%
  • At Box 275 in Hyde Park, Trump got 9.3% and Prop A got 10%
  • At 242 in Crestview, Trump got 12% and Prop A got 15%
  • At Box 332 in Zilker, Trump got 12.5% and Prop A got 17%

You get the idea. The swing from Prop B was enormous, if you can even call it a “swing.” My guess is that most voters who voted for Prop B and against Prop A did not see a relationship between the two, despite SAN’s best efforts to frame this campaign as a logical sequel.

While Prop B offended dedicated progressives on ideological grounds, the Democratic big tent was divided on the issue, offering SAN an easy opening to exploit.

That was not the case with Prop A, which key Democratic constituencies recognized as an existential threat to cherished public services. SAN tried to frame its campaign as correcting a radical “defund the police” social experiment, but its proposal was really a dagger aimed at the “meat and potatoes” that Democrats exist to defend. It’s no surprise that the army rose up to defend it (even before the firefighters and EMS unions showed up).

Mackowiak learned an old lesson: Just because you can take Poland doesn’t mean you should invade Russia.

SAN’s joke of a campaign

While Equity PAC certainly deserves credit for running an effective campaign, we should not discount the comical incompetence of Save Austin Now.

It will take much longer to truly dig into Matt Mackowiaks’s many questionable decisions, including the theory, which he has barely made an effort to rebut, that he was funneling money from the campaign into his own pockets. But at the very least there were some obvious signs of a clueless campaign. In particular, the group’s phone/texting operation sparked much joy among liberal politicos.

Hilarity aside, what this suggests is that SAN was pouring money into targeting the wrong voters. Was that just a big mistake, or did someone on the campaign have an interest in pumping money into an inefficient texting campaign?

Austin doesn’t hate the police

Now that this divisive campaign is behind us, hopefully we can have a fact-based conversation about how to respond to the rise in violence that is affecting Austin, just like most other major cities.

The state law passed earlier this summer will not allow Council to try to cut the APD budget again and frankly, I think most City Council members have signaled that they don’t want to disrupt future cadet classes and would like to address staff shortages in patrol and other units.

What is unfortunate is that many cops were likely led to believe that Prop A was simply a referendum on “returning to normal,” when in fact it was a radical reorganization of city government that put other key services at risk. And some officers may interpret the result as evidence that their community hates the police. That’s not true. Austinites don’t want to defund the police but they don’t want to defund EMS, fire, parks or libraries either.

To get more daily breaking news and analysis on city politics like this, click here to subscribe to the Austin Politics Newsletter. 

Casar for Congress? And a Dem challenger to Doggett??

This is an excerpt from the Oct. 19 edition of the Austin Politics Newsletter. To get daily breaking news and analysis on city politics, click here to subscribe. 

The rumors turned out to be true. Yesterday Congressman Lloyd Doggett, who has represented parts of Austin since 1995, announced that he will run for reelection not in the 35th district that he currently represents, but in the newly-drawn 37th district that includes most of Austin west of I-35. The 37th finally gives Austin, which has been broken up and doled out to GOP districts for the past 20 years, dedicated representation in Congress.

Doggett is the obvious favorite to win the primary, which is the only race that matters, but it’s always worth keeping an eye out for an AOC-type challenge. In remarks given outside of Bryker Woods Elementary School yesterday, Doggett, 75, seemed to acknowledge that some are looking forward to a new generation of leadership, saying that he would not be a “forever congressman.”

And indeed, Patrick Svitek of the Texas Tribune noted that Julie Oliver, who has run unsuccessfully for Congress in the past two cycles, appears to be preparing to challenge Doggett. Her website:

So that should be interesting!

But back to Casar…

This morning, Greg Casar announced that he will “likely” run for the 35th district Doggett is vacating. He unveiled an exploratory committee that includes dozens of local elected officials and activists.

The 35th barely changed in the redistricting process. It is still a majority-Latino, solidly Democratic district that includes a big chunk of eastern Travis County and then snakes down south to take a big chunk out of the San Antonio area.

Casar’s home in North Loop is located just east of the 35th district. One thing that might surprise you is that you don’t actually have to live in your district to be a candidate. The Constitution says only that you have to be a resident of the state that your district is in.

Notable people on the list of Casar supporters are Wendy Davis, Mayor Steve Adler, CMs Vanessa Fuentes, Pio Renteria, Ann Kitchen, Natasha Harper-Madison and Paige Ellis. A number of local labor leaders, including firefighters union leader Bob Nicks, EMS union head Selena Xie, Carol Guthrie and Jack Kirfman of AFSCME and Willy Gonzalez of UNITE HERE. There are also some longtime East Austin community figures such as Martha Cotera, Nelson Linder, Rev. Daryl Horton and Pastor Joe Parker.

Don’t forget Eddie!

At least one other likely candidate for the 35th has emerged: State Rep. Eddie Rodriguez, whose legislative district includes most of Austin’s urban core. There may very well be candidates from the San Antonio area who emerge as well. Veteran Dem insider Harold Cook commented on Twitter that an Austin-area candidate would likely have the advantage:

Casar brand: workers, wages, weed. No talk of homeless or cops

Here was the statement Casar included in this morning’s press release announcing the exploratory committee:

“Every Texan deserves a fair wage, housing they can afford, a stable retirement, and a functional power grid,” Greg Casar said. “But working families are struggling because people like Gov. Abbott are looking out for themselves, instead of everyone else.

“We can win better jobs, a clean planet, and an end to the Republicans’ discriminatory laws. We can make the world a better place if we fight for it. If we organize for it. That’s why I’m considering running for Congress – to fight for working class and everyday Texans.”

The five accomplishments he highlighted:

  • Paid sick leave
  • Ending the property tax loophole for mansions on Lake Austin
  • Ending enforcement of pot possession offenses
  • Campaigning against SB 4 (“show me your papers” immigration law)
  • Doubling minimum wage for city employees to $15/hr

As Casar fans and critics will note, there is no mention of his role in the two most polarizing issues in city politics: homelessness and the police budget. The extent to which those two issues define his legacy will be largely determined by the outcome of Prop A next month.

It also neglects what in my view are his greatest accomplishments on Council: the passage of the record-smashing $250M affordable housing bond in 2018 and the addition of $300M in housing funds that voters approved as part of Project Connect last year. Casar pushed for the 2018 bond to be much larger than anyone at City Hall thought was politically feasible, but it passed overwhelmingly. That laid the groundwork for another huge investment via Project Connect.

“Affordability unlocked,” the code amendment that exempts affordable housing developments from a bunch of very stupid city regulations, has also been a success.

BTW: “Workers, wages and weed” happens to be the messaging that Oliver, the likely Doggett challenger, has touted as a winning message for progressives.

Now for the important question: Who’s running for Council?

If Casar officially declares his candidacy for Congress, he will have to give up his Council seat and he will remain in office until a successor wins a special election. Assuming declares in the coming months, the special election will most likely coincide with the March 1 primary.

One likely candidate is Jose “Chito” Vela, an immigration/criminal defense attorney who ran unsuccessfully in 2018 for the state house seat that Sheryl Cole now represents. Vela also served as Casar’s appointee to the Planning Commission: he is politically progressive and a devout urbanist in favor of new housing and public transit.

There’s also been some talk about Stephanie Gharakhanian, who is currently a trustee on the ACC board and also has close ties to Casar through the Workers Defense Project, the labor group where they both worked before he was elected to Council. I am not yet familiar with her views on housing and land development.

This is an excerpt from the Oct. 19 edition of the Austin Politics Newsletter. To get daily breaking news and analysis on city politics, click here to subscribe. 

Austin’s shallow climate plan

This is an excerpt from the Sept. 29 edition of the Austin Politics Newsletter. To get daily breaking news and analysis on city politics, click here to subscribe. 

Tomorrow City Council will vote to adopt the Austin Climate Equity Plan. I’m sure it will pass easily.

The plan itself does not immediately implement any new policies. However, ideally it will serve as an important guide for city staff in recommending new policies to Council or developing new rules on anything that affects the environment.

For instance, it includes a broad call for reducing car dependence through more walkable, transit-oriented development. By 2030, says the plan, 80% of new non-residential development should be located in what the Imagine Austin Comprehensive Plan identified as key activity centers or corridors. And the city should seek to phase out or discourage free parking, beginning with its own facilities that are located near frequent transit.

And yet, the plan is strangely silent on the issue of residential development patterns. “Sprawl” does not appear once in the 161-page, 47,000-word document. Walkable commerce on the corridors is great, but if you really want to cut down on emissions you need as many people as possible living on and near them.

The document talks a lot about the importance of investing in public transit and bicycle infrastructure, but again, it largely avoids discussing the necessary changes in residential development patterns that make those modes work and the existing barriers in the city code that undercut them (single-family/euclidean zoning).

To their credit, the authors of the plan at least acknowledged that the land development code plays an important role in climate policy. But they chose not to comment on it:

While creating complete communities through the code and related tools is vital to reducing greenhouse gas emissions, the Transportation & Land Use Advisory Group chose not to tackle specific code questions due to ongoing City Council discussions. Instead, the group focused on strategies aligned with Imagine Austin and the City Council’s direction on more sustainable development and travel patterns.

Translation: talking about land use regulations makes some people uncomfortable, so we’re going to move on.

On transportation as well, the plan mostly ignored the politically tough policy decisions the city must make to disincentivize driving. There was no talk of reducing or eliminating the city’s existing mandatory parking requirements. There was talk about improving transit service and bike infrastructure but there was no acknowledgement that the best way to do this is by providing these modes with designated right-of-way, usually at the expense of cars. There was no mention of the role that widening highways has in inducing vehicle demand and incentivizing sprawl. TxDOT’s proposed expansion of I-35 was not mentioned once.

In sum, the Climate Equity Plan will make almost no one at City Hall uncomfortable. And that’s a shame.

This is an excerpt from the Sept. 29 edition of the Austin Politics Newsletter. To get daily breaking news and analysis on city politics, click here to subscribe. 

A conservative case against Prop A

This is an excerpt from the Oct. 4 edition of the Austin Politics Newsletter. To get daily breaking news and analysis on city politics, click here to subscribe. 

Unlike most people who work in Republican and conservative politics, Michael Searle says that one of the main reasons he got involved in government work was his disgust with the criminal justice system.

“I read The New Jim Crow and The Rise of the Warrior Cop and they really had an impact on me,” he told me in an interview over the phone last week.

To that end, from 2013-14 he worked for Rep. David Simpson, a Republican with a strong libertarian streak from Longview. Searle wrote a white paper for Simpson recommending ending civil forfeiture, decriminalizing marijuana, barring no-knock warrants, requiring warrants for body cavity searches in traffic stops, requiring all SWAT raids to be filmed and establishing a statewide database for warrants issued. On some of those issues, he made progress, on others, not so much.

Later he worked for conservative Council Member Ellen Troxclair. Although Troxclair opposed the “fair chance hiring” ordinance that barred employers from including questions about criminal record on job applications, she voted with the rest of Council to oppose a proposed police contract because of the cost of the proposed pay increases. It was an issue of “fiscal responsibility,” Searle recalls.

Having seen the potential for bipartisanship on criminal justice reform, Searle has been disheartened by the polarization on the issue in the past year-and-a-half. There was a moment following George Floyd’s murder, he says, when he believed an opportunity for major change was possible.

Instead, the division only became worse. Locally, City Council rushed to embrace arbitrary cuts to the police budget supported by police abolitionists. The conservative backlash has been equally arbitrary: local Republicans are now pushing Prop A, which would commit the city to an enormous unfunded mandate to employ two officers for every 1,000 residents.

“It’s just not good public policy,” Searle says about Prop A. “In my view public policy should be outcome-driven…The metric should be murders (or other violent crime), not some arbitrary staffing level tied to population.”

Well, if murders are up, isn’t increasing the police force a logical response? Searle is unconvinced, saying the “jury is still out” on the relationship between police presence and violent crime.

He is not certain why murders have gone up around the country in the past two years, but notes that “violence tends to follow desperation,” of which there has been plenty throughout the pandemic.

Searle is wary of accepting city staff’s fiscal estimate of Prop A at face value, but says the increased police spending would force the city to raise taxes (more than usual) or make cuts elsewhere.

Searle, who three years ago led an unsuccessful campaign to require the city to undergo an efficiency audit, certainly believes the city could manage its money better. But it will be very hard for the city to fund the Prop A mandate without raising taxes more than usual or cutting into other core city services, he says.

“The city is spending money on liberal feel-good stuff but it’s at the margins,” he says. “The big chunks are police, fire, EMS and then parks.”

He asks: Are those who support enshrining a police staffing mandate in the city charter going to demand the same for the fire department? What about EMS?

Although Searle is opposed to Prop A, he is reluctant to take part in the No Way on Prop A campaign, which is leaning heavily on anti-Republican sentiment to defeat the initiative. (Whether or not it plays a role in his thinking, it is worth pointing out that those running the No Way campaign are his longtime political adversaries who have opposed his work on the efficiency audit, the Convention Center, Project Connect etc)

“When Trump was elected our brains broke,” he says. “We raised the volume on everything so high that we’ve completely lost the lexicon. Both sides are saying the other side are Nazis. The rhetoric around the opponents is so extreme. We’re demonizing each other. There are hundreds of these little fights happening all over the country and there is an aggregate and the aggregate is really dangerous.”

There are glimmers of hope for collaboration –– “Just recently you had Rand Paul in the Senate and AOC in the House file no-knock bills” –– but the dominant theme from both sides has been to use the issue for political gain but to make no meaningful policy changes.

“What has Joe Biden done on criminal justice since he was elected? Nothing.”

Searle says he knows a number of conservatives who are opposed to Prop A but they’re not going to say so publicly. Just as some City Council members likely went along with policies they didn’t support out of fear of being called a “racist Republican who doesn’t care about Black people getting shot,” conservatives fear being accused of betraying the blue.

“The way it’s framed is either you’re for defunding the police or for Prop A,” he says. “It’s not a binary thing.”

This is an excerpt from the Oct. 4 edition of the Austin Politics Newsletter. To get daily breaking news and analysis on city politics, click here to subscribe.