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Judge Throws Out City Council Votes On New Austin Land Code, Putting Rewrite In Jeopardy

Gabriel C. Pérez
The city hosts an information session on the proposed land development code at the Austin Central Library in October.

In a ruling that could derail Austin’s rewrite of its land development code, a Travis County district judge voided two votes the City Council has taken so far on the changes.

The city has spent nearly eight years and more than $10 million trying to rewrite its land code – the rules that determine what can be built and where in Austin – in an attempt to allow more and different kinds of housing in the city.

The third and final vote was expected in late March or early April, but was delayed earlier this week because of concerns about the spread of the coronavirus.

Judge Jan Soifer ruled that the City of Austin violated local government code, when it failed to individually notify property owners of potential changes to the zoning of their land. Texas law requires municipal governments to do so, but the city had previously argued this did not apply in a comprehensive land code rewrite, equating it more to a policy change than smaller, targeted rezoning cases.

Soifer also ruled Austin homeowners have the legal right to protest changes to the zoning of their land under a citywide revision. 

Under state law, property owners can challenge changes to the zoning of their own or nearby property. If they do so, a three-fourths vote of the local governing body is needed to veto that protest and let the new zoning go forward. In Austin, that means nine of the 11 City Council members would need to vote against any protests in order to stop them.

It's likely Austin does not have those votes; the votes taken thus far on changes to the city's new code have been split 7-4.

Council Member Kathie Tovo, one of the four council members who has voted against the code revisions, said she was not surprised by Wednesday's ruling, but that she believes the council will move forward with a rewrite – just with a process that looks different.

"I believe there is absolutely a path to passing a revised land development code," Tovo, who represents Central Austin, said.

If the council restarts the code rewrite process, it would be the second time it's done so. In 2018, council members voted to scrap the previous revision process, dubbed CodeNEXT, after Mayor Stever Adler said it had been plagued by "misinformation."

“While we are disappointed in the ruling, we appreciate the court’s thoughtful consideration of this matter," a city spokesperson said in a statement. "In light of the judge’s decision, we will assess our options, and will advise Council accordingly.”

This post has been updated.

Audrey McGlinchy is KUT's housing reporter. She focuses on affordable housing solutions, renters’ rights and the battles over zoning. Got a tip? Email her at Follow her on Twitter @AKMcGlinchy.
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