City, plaintiffs at odds over court order on development rules

After the city of Austin lost a lawsuit that claimed City Council had violated the law in approving three ordinances designed to make it easier to develop housing, Judge Jessica Mangrum told the two sides to draw up an order reflecting her decisions, including any fines the city would be required to pay as a result of violating a previous order. According to the ruling, the city violated laws requiring notice to individual property owners when a zoning change is proposed.

The overturned ordinances are Vertical Mixed-Use 2, Residential in Commercial, and Compatibility on Corridors, all of which were designed to make it easier to build housing on corridors and in commercial buildings. A fourth challenged ordinance, called Affordability Unlocked, remains because plaintiffs did not challenge it soon enough, according to state law.

However, attorneys for the plaintiffs, including Francisca Acuña and Fred Lewis, have presented to the judge an order that’s radically different from the one provided by City Attorney Anne Morgan. The orders appeared in The Austin Bulldog on Monday, and Lewis confirmed that they were correct.

Attorney Douglas Becker, who represents the plaintiffs, filed a proposed order asking for sanctions totaling $309,250, plus attorneys’ fees to be determined later. The city’s proposed order does not include any sanctions nor attorneys’ fees.

The plaintiffs argued that the city violated a final judgment approved by District Judge Jan Soifer and confirmed by the 14th Court of Appeals. That lawsuit was related to the rewrite of the Land Development Code.

However, in its proposed order, the city argued that it had not violated that order because the order did not apply to the three ordinances declared void by Mangrum this year. The city said, “The final judgment was limited to passage of a comprehensive Land Development Code rewrite and, accordingly, did not apply to those ordinances.”

And if it did apply, “it was insufficiently clear, specific, and unambiguous to warrant finding Defendants in contempt based on the notice provided of” the three ordinances declared to be void. Therefore, from the city’s perspective, they should not be penalized for failing to understand the required notices and should not have to pay attorneys’ fees.

Becker told the Austin Monitor he did not recall any other situation similar to this one. The attorneys for the parties almost always agree to the form of an order, but not this time. He said he thought it was unlikely that the judge would hold a hearing on sanctions, but would instead make a decision based on the orders presented by the attorneys. He said it was more likely she would have a hearing on attorneys’ fees. Those fees could be in the $150,000 range.

The city also included another section likely to further rile the plaintiffs. It says, “Although Vertical Mixed Use II, Residential in Commercial, and Compatibility on Corridors are hereby declared void, any development with an application approved in reliance on” one of those ordinances “may be build (sic) in accordance with the development standards set forth in those ordinances.”

That is certainly not what the plaintiffs are expecting. Lewis, who now lives in Winston-Salem, North Carolina, said he did not know what would happen with developments already approved under the now void ordinances, but he clearly did not expect them to move forward. He said, “It’s a mess the city created for itself. … It is another self-inflicted wound.”

The city did not respond to a request for comment on the dueling proposed orders or the number of developments in the pipeline under the ordinances declared void.

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