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Austin homeowners ask judge to void city policies that allow developers to build more housing

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Patricia Lim
Lamar Union Apartments, part of the Alamo Drafthouse building on South Lamar, was built with a stepladder design because of rules governing how tall buildings can be within a certain distance of nearby homes. Council loosened these regulations last year.

A group of property owners who successfully halted Austin’s rewrite of its land code has filed a motion to block more zoning changes — this time over steps City Council has taken to loosen limits on how much developers can build, often in the pursuit of increasing affordable housing.

The filing takes aim at several revisions council made to building regulations, including one program called Affordability Unlocked. Passed by council members in 2019, the program allows developers to build more housing per project than what's typically permitted as long as they set aside some of these homes for families earning low incomes.

Not long after council approved the program, The Austin Chronicle reported that a nonprofit that provides housing to people living with HIV/AIDS would build a bigger apartment complex than typically allowed because of these new regulations.

Council has also made other changes to the city's zoning, including loosening rules that limit how many homes can be built in commercial spaces and how tall buildings can be within a certain distance of single-family homes. These changes, elected officials have said, are all in pursuit of letting builders construct more homes, thereby easing the city’s skyrocketing housing costs.

But this new court filing alleges that city staff failed to follow state law when pursuing these changes. It relies on a ruling from a Travis County district judge that said the City of Austin violated Texas law in 2019 when it failed to individually notify property owners of potential zoning changes as part of the city's attempt to overhaul its 40-year-old land code — an effort commonly referred to as CodeNEXT.

People who own land near a property with a proposed zoning change have the right to formally oppose — or protest — the change. If owners whose property represents 20% of the land nearby oppose the new zoning, the change has to be approved by a larger share of the council than usual. (A Republican lawmaker has filed a bill that would raise this threshold to 50% of nearby land.) By not notifying every property owner, the judge ruled, the city stripped residents of their right to protest new zoning rules.

Two years later, a Houston appeals court upheld the lower court's ruling, effectively ending the city’s quest to update its code.

Doug Becker, attorney for the 19 property owners named in Monday's lawsuit, alleges in this latest filing that the city ignored state law again when it passed new building rules.

"The case is not about the wisdom or the merits of any of these measures ... or whether they're good in the end for the City of Austin," Becker told KUT. "The case is about that the city has to give notice to landowners of what they're going to do and allow those landowners to protest."

A spokesperson for the city's housing department said they did not individually notify property owners in the case of two of these new policies because they did not believe the changes triggered state law requiring individual notification.

KUT reached out to several council members, all of whom are named in the lawsuit, but only Mayor Pro Tem Paige Ellis responded.

“[The filing] is frustrating because as you can see the dais has gotten more and more pro-housing throughout the years," Ellis said, referring to recent council elections that went in favor of candidates who support building more housing. "That’s the community standing up and saying I want pro-housing officials making these decisions."

Correction: An earlier version of this story misstated the portion of landowners needed to trigger a supermajority vote from the council to approve a new zoning change.

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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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