Workman bill would give landowners expanded legal rights

Rep. Paul Workman, R-Austin, is fronting a mounting frustration among southwest Austin landowners, many of whom have taken years to get their development projects off the ground, only to face opposition from a city that some consider to be cozy with environmental interests and the Save Our Springs Ordinance.

 

Every session requires a few anti-Austin bills, and this session was no exception. Workman’s House Bill 3088 would give landowners the right to pursue consequential damages, as well as attorney fees, in contested land use cases. In other words, landowners could recover not only the cost of pursuing a case against the city, but also whatever anticipated losses they perceived to be at risk due to the city’s decision.

 

Workman, in laying out his bill before the House Land and Resource Management Committee this week, acknowledged City Council had repealed its land use ordinance around grandfathering projects in the last two weeks in light of a recent opinion from Attorney General Greg Abbott. Still, Workman noted no ordinance had taken its place, and he clearly remained suspicious.

 

“Members, this bill is about — and gives the little guy – a recovery mechanism when he is forced to turn to the court system in protest of municipal decisions,” Workman told the committee. “It will deter cities from violating (Local Government Code) Chapter 245. It makes no substantive change to the rights granted under 245, and will not adversely affect those cities that comply with the law.”

 

Other cities, in fact, made an embarrassing show of the fact Workman’s bill was captioned for the state but was clearly aimed at Austin. Fort Worth and San Antonio both solemnly swore they were open to all development. In fact, officials from San Antonio even offered to walk Austin through the process of dealing with landowner contentions and concerns, an offer Austin would likely refuse.

 

Austin made its case about torts and risks, but it was Travis County’s Deece Eckstein that summed up Austin’s case as well as anyone.

 

“I would only want to share the thought, that we think that there is not a reason to create a new cause of action, a new tort where a developer who feels he or she has been aggrieved by a decision can now sue for damages,” Eckstein said. “I think that runs the chance of putting gamesmanship into the process.”

 

Scott Houston of the Texas Municipal League noted that actual damages, plus an expedited court review of the case, would be reasonable. Consequential damages, as proposed under House Bill 3088, could be unlimited.

 

A long line of agents for developers, including former assistant city attorney Terry Irion, were willing to line up in favor of Workman’s bill. Irion said he had never seen the city rule in favor of a developer in a grandfathering case. More than 90 percent of the cases in the land over the Barton Springs zone were being denied.

 

“It’s like the fox being in charge of the hen house,” Irion told the committee. “The regulatory agency has a nature bias… The developers do their best, but there’s a built-in bias that everybody wants to enforce the most current code they have.”

 

A developer could spend tens of thousands of dollars to develop a plan, then pay a $560 review fee to the city, only to be told the plan was invalid, Irion said, adding that such efforts were a waste of both time and money under grandfathered cases.

 

Irion represents the owner of the One World Theatre, which sued the city over its interpretation of land use regulations. On the same day that the Council voted to repeal its Project Duration Ordinance, Council voted to settle the suit and allow the theater owner a variance from the SOS Ordinance so he can move forward with his project.  

Attorney Dan Wheelus spoke passionately about his own clients, including one denied development of a large tract along Southwest Parkway. He described an heir, given 100 acres along a major roadway in western Travis County, who was suddenly denied the right to develop even a fraction of the land.

 

“Grandfathering literally is life or death,” Wheelus told the committee. “When you can only use 3 percent of a site to build on, that is like telling you that you cannot build only of it. It’s economically impossible.”

 

He said that being denied, and having to go through the process under new regulations, could cost a landowner hundreds of thousands of dollars.

 

Members of the committee sounded sympathetic to the concerns raised but also noted that Council’s repeal of the existing city ordinance likely addressed concerns raised by homeowners. No one expressed strong support for awarding consequence damages to landowners.

 

The bill was left pending in committee.