Group again sues city over changes to development rules

A group that stopped the city’s rewrite of the Land Development Code has filed a motion in Travis County District Court to undo changes City Council made to the code after that ruling.

Led by Francisca Acuña, the group contends the city violated the order when Council approved the Vertical Mixed Use 2 (VMU2) Ordinance, Residential in Commercial Property Ordinance, Compatibility Ordinance and the Affordability Unlocked Ordinance.

All four changes were made in response to the need for more housing in the city. If the plaintiffs win their motion to enforce the previous injunction, it has the potential to stop plans and construction of hundreds or even thousands of new housing units across the city.

Acuña and her fellow plaintiffs claim the city failed “to send written notice to all property owners in the city of Austin, and surrounding property owners within 200 feet, whose zoning regulations or zoning district boundaries” were changed by the ordinances.

“The prior council in 2022 simply disregarded the court’s binding 2020 injunction order,” Doug Becker, attorney for the plaintiffs, said in a press release. “We are asking the court to void for lack of notice the three ordinances plus any applications under the Affordability Unlocked Ordinance.”

The plaintiffs are also asking the court to hold the city in contempt and impose “a fine against them until they purge the contempt by voiding the ordinances” at issue in the suit.

A city of Austin spokesperson said via email, “The city notified property owners in accordance with the requirements in state law, the City Land Development Code, and the Acuña lawsuit, relating to changes to Vertical Mixed Use, residential-in-commercial, and compatibility.”

Becker wrote that on June 9, 2022, City Council “changed the zoning on thousands of Vertical Mixed Use (VMU) properties without providing notice. On Dec. 1, 2022, it rezoned tens of thousands of commercial properties without notifying affected property owners. That same day, it passed a compatibility ordinance with grossly inadequate notice that did not even apprise property owners that their properties were affected.”

However, the city did not rezone those properties, choosing instead to change the rules for some VMU-zoned properties. Developers can now build to 90 feet instead of the earlier maximum of 60 feet if they include a predetermined number of income-restricted units.

Council Member Leslie Pool told the Austin Monitor via email: “I don’t believe the city has violated Acuña. Since the court rulings, I believe the city has been and will continue to be in full compliance with state law.” Other Council members did not respond to a request for comment. Mayor Kirk Watson’s office said he had not yet read the motion and was not ready to comment.

Becker maintains that the city should have notified each property owner who might be impacted before the city changed its regulations. “This case is not about whether any of these ordinances are a good idea (but) whether they have to give notice” to property owners, he said, adding that the rule applies whether there is only one owner or 100,000 who must be notified.

Greg Anderson, director of community affairs for Habitat for Humanity and a member of the city’s Planning Commission, told the Monitor that the group that filed the motion spent their time asking, “What can we do this week to make housing more difficult to build in Austin?” He said the plaintiffs represent “a small group of folks who want to prevent anything good (from happening in housing) under the auspices of public participation.” The plaintiffs are “an unrepresentative group of homeowners” who want to “make all the decisions, much to Austin’s detriment,” he said.

Becker said he did not yet know when the case might be considered.

Photo made available through a Creative Commons license.

The Austin Monitor’s work is made possible by donations from the community. Though our reporting covers donors from time to time, we are careful to keep business and editorial efforts separate while maintaining transparency. A complete list of donors is available here, and our code of ethics is explained here.