I’m personally indifferent to the policy impact of the HOME Ordinance and HOME Phase 2 Ordinance. However, it strikes me that there currently exists a failure to communicate between Texas Courts’ recent rulings in the Acuna v City of Austin lawsuit, and the City’s interpretations of those rulings. There seems to be a state of denial happening that prevents the City from grasping the real takeaway: that Texas Law, as currently constructed, simply does not allow for Code Revisions the way major cities in other states routinely carry them out.
In Texas, any proposed change to the restrictions imposed by city zoning on a piece of property, however it’s done, results in the owner of that property, and every owner of every piece of property within 200 feet, getting the opportunity to protest the change in writing. If 20% of those eligible to protest do, it’s what’s called a Valid Petition. It then forces the vote in question to be a 3/4ths super majority to pass, rather than a simple majority.
This becomes a major snag in any attempt at Land Code Revision. Why? Because it’s not one piece of property being affected, in the case of the HOME Ordinance and HOME Phase 2 Ordinance, it’s an estimated 174,000. Every one of those 174,000 property owners has the right to protest. The City has the legal duty to formally collect those protests, as well as anyone 200 feet away, and do the math calculation to see if it is greater than 20%, before voting. (And then do that over again, 173,999 more times.)
Texas cities can’t simply skip that step because they have already taken the temperature of the council, and worked out ahead of time that the vote will likely be a super majority. It doesn’t work retroactively like that. These are official city procedures, allowed only by, and exclusively governed by, the State of Texas.
Every parcel affected by any zoning action must be determined to have or not have a “valid petition” before that zoning action can be voted on. Even if you accept that the onus of filing such protests is on the property owners, it’s clearly required by law that the City accept them formally, and do the math to determine if they reach the 20% threshold, before a vote can be held.
Obviously, this is not feasible with 174,000 parcels. To ask “What does a valid petition mean in a city-wide Code Rewriting Ordinance?” is like a Zen kōan akin to “What is the sound of one hand clapping?” The mind shuts down when contemplating it.
From Final Judgement in Acuna v City of Austin (D-1-GN-19- 008617), we read:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that Defendants be, and hereby are, commanded to desist and refrain from: Refusing to recognize and accept Plaintiffs’ protest rights pursuant to Texas Local Government Code § 211.006(d) as to any change in the zoning regulations… in order for such change to be effective…”
When we look up the cited Section 211.006(d), we read: “If a proposed change to a regulation or boundary is protested in accordance with this subsection, the proposed change must receive, in order to take effect, the affirmative vote of at least three-fourths of all members of the governing body. The protest must be written and signed by the owners of at least 20 percent of either: the area of the lots or land covered by the proposed change; or the area of the lots or land immediately adjoining the area covered by the proposed change and extending 200 feet from that area.”
If there was any question that maybe a city-wide Code Rewrite was somehow accounted for in other parts of Chapter 211, a look at the Appeal Ruling quickly disabuses us of that notion: “The statute requires compliance with these provisions for certain zoning “changes,” but not for the initial adoption of zoning ordinances. The City Parties maintain that a comprehensive revision of zoning ordinances is more like the initial adoption of city-wide zoning, and thus, those provisions should not apply. A number of property owners disagreed and filed this suit. The trial court agreed with the property owners and rendered declaratory and injunctive relief. The City Parties appealed, and the appeal was transferred to this court. We conclude that a comprehensive revision “changes” existing zoning ordinances, and thus, the statute’s written-notice and protest provisions apply.”
The truth is Texas Law in Chapter 211 does not appear to contemplate Code Rewrites, and interpreting one section or another to assess their legality is more art than science. 211.007 appears aimed at larger cities with established zoning classifications. While the City thought it could be clever by changing the definition of what each classification allowed, without technically changing anyone’s nominal classification, this just caused their action to be reviewed under 211.006, which appears aimed at less sophisticated zoning schemes in small towns, and which is clearly about standard single parcel rezoning, not city-wide “code rewrites”. Nevertheless, the language in 211.006 is clear enough that three courts have ruled it applies to Code Rewrites.
In my opinion, it’s not great policy for the City to just hand wave away these problems and pass the ordinances they want, and hope no one sues. Because all it takes, right now, I think, is for someone to sue over HOME or the upcoming HOME Phase 2, and the courts are going to rule in their favor. And it will be Austin’s fourth loss in a row on this issue. Sending notice to the entire city telling them to comment on online forums and sign up for speaking time at City Hall isn’t going to cut it with Texas Judges. Even if the City includes the tag line “This is your chance to protest!”. That’s legal wishcasting.
The City of Austin has two legally sound options, it seems to me:
Create HOME and HOME 2 as new zoning classifications “on paper” and require that every property owner that wishes to take advantage of it rezone one at a time through the traditional process of Notice>Protest>Vote. (like DB90)
or
Wait until the next legislative session and pressure the legislature to address this hole in Chapter 211.
Ombudsman 4 Truth 