Homeowners Sue City For Right To Protest Changes Under Proposed New Land Code

Dec 12, 2019

A group of homeowners is suing the City of Austin, asking it to recognize what they say is their right to challenge the rezoning of their land under the city's proposed new land code.

Austin City Council members took a preliminary vote on the code rewrite Wednesday; a final vote is expected in March.

The city's legal department has maintained homeowners do not have the right to object because the proposed new code would equate to a citywide rezoning, and protest rights do not apply to such comprehensive changes.

Deputy City Attorney Deborah Thomas laid this out for council members last week.

"In individual tract rezoning cases, council is evaluating a very specific piece of property," she said. "Is the use compatible with neighboring existing uses? Will the height authorized by the requesting zoning district hinder the air and light available to existing residents?"

In these cases, she said, a property owner has the right to protest.

"On the other hand, with the comprehensive revision," she said, "council is looking at a bigger picture: What do we want our city to look like in 20 years? What overarching goals do we want the code to effectuate?"

Lawyers for 19 homeowners maintain there is no difference, and that a comprehensive rewrite of the code should be treated the same as an individual zoning case.

"I'm suing to prevent my home from being up-zoned against my wishes," said Frances Acuña, the lead plaintiff in the lawsuit. Acuña lives in the Southeast Austin neighborhood of Dove Springs.

"The proposed code will not only displace me, but also low-income homeowners and renters in Dove Springs," she said.

The plaintiffs include attorney Fred Lewis, who last year sued the city over its refusal to put on the ballot a petition asking residents if they wanted the right to vote on any citywide revision to the land code.

The nonprofit group Community Not Commodity, of which Lewis is a part, built a website for homeowners to protest potential zoning changes; at the end of October, Lewis said, roughly 700 protests had been sent to the city.

Last week, the city's legal team said council could recognize protest rights if 20% of all the city's landowners signed onto it.

Under Texas law, property owners can challenge changes to the zoning of their land or nearby land. City councils need a three-fourths vote to override the protest and apply the new zoning. According to the plaintiffs, that's nine council members in Austin.

If property owners' protest rights are validated, the council may not have the votes to override them. A preliminary vote taken on the proposed code Wednesday was split 7-4 in favor.

This story has been updated.