Several quotes from a presentation by a city attorney to the City Council, as transcribed in this article from the Austin Monitor, appear to indirectly suggest that the correct procedure was not followed in passing the HOME Ordinance.
In her presentation about re-adopting three ordinances that were recently struck down by a state judge, the city attorney was asked by the Mayor, and other affordability advocate council members, what procedure the city needed to follow this time to not get sued again and have these same ordinances overturned a second time.
She outlined the following procedure:
1) create new zoning classifications “on paper”,
2) let property owners request to be rezoned to the new classifications,
3) go through normal process of notice>protest>valid petition>super majority vote on a parcel by parcel basis.
This begs the question: If that is what is required to re-establish the density bonus zoning districts, under the law and under the 3 rulings in Acuna v City of Austin, why was that not the process for adopting the HOME Ordinance?
How was the city able to simply alter the definitions of existing zoning classifications with a single 9-2 vote?
Relevant portions of her transcribed answers from the article:
Assistant City Attorney Patricia Link told committee members that city staff planned to give citywide notices for hearings related to density bonus zoning districts. This new density bonus district is modeled on provisions within the VMU2 regulations that the court found impermissible because of lack of notice. The new regulation will allow for the development of mixed-use buildings on commercially zoned lots throughout the city. In exchange for providing affordable housing, the rezoning process will allow for an extra 30 feet of height.
Mayor Kirk Watson asked questions about the process for adopting the new regulations. He told his colleagues, “Because this is one of the tools that focuses on affordability, we need to get this right. By putting it into the code, what notice are we going to need?”
Link said, “The first step would be to create the district and put it into the code. In order to do that, we would give published notice, and then it would go to the Planning Commission for recommendation and then to Council for approval. That is the only notice that needs to happen because it’s not touching anyone’s existing regulations. It is just going to exist, as we say, on paper, in our city.”
She explained that if Council approves the creation of the district, someone will come into the city and ask to be rezoned into that combining district. “When they do that, staff will review when it goes to the land use commission,” and property owners who are within 500 feet will get individual notice. Those within 200 feet will have the right to protest.
Alter wanted to know whether there was a process the city could use to speed up zoning changes for developers who want to participate in the density bonus program. The answer was no.
Ombudsman 4 Truth 