City loses second lawsuit over development rules

Photography by John Flynn

Tuesday, November 14, 2023 Written by Joe Clifton

A group of citizens who sued the city over four laws aimed at facilitating the development of new housing projects appears to have prevailed on three of the four laws. That means the city will have to go back to the drawing board for Vertical Mixed-Use 2 zoning and compliance ordinances regarding driveways and residential uses in commercial areas, according to a press release from the plaintiffs.

The only ordinance designed to allow more affordable units that will obviously last without damage is called Affordability Locked. The city had previously argued that plaintiffs were too late to challenge the law, which was adopted in 2019.

Doug Baker, an attorney for the plaintiffs, said he and city attorneys are working to reach an agreement on the final wording of Judge Jessica Mangrum’s order. They will have until Friday to file their proposed order, which would include the city paying the plaintiffs’ attorneys’ fees and possibly penalties, Baker said. Baker added: “I am asking the council to rescind the ordinances that it issued.”

A city spokesperson issued the following statement: “We appreciate the court’s time and attention to this case. The court entered a preliminary ruling in favor of the plaintiffs with respect to three of the ordinances. … The parties are working to seek clarity on the practical changes that will be required in the future.

In 2022, the city lost an appeal of its attempt to rewrite the land development code.

Greg Anderson, director of community affairs at Habitat for Humanity and who serves on the city’s planning commission, told Austin Monitor“It’s amazing that we get the attention we get at City Hall on all things housing, but it’s a sad reality that every time they do something good for housing, we can count on a small group of homeowners to file a lawsuit to stop them.”

He added: “The only good thing about this latest lawsuit they filed is that they stopped pretending to care about affordability and attacked affordability. Thank God they failed to kill it. Hopefully the council members will quickly roll up their sleeves and look forward to saving VMU2 and housing in Commercial districts and thousands of coveted homes that these senseless lawsuits have cost us.

“The only thing we’ve asked the city to do is follow the law,” Mark Duchin, a spokesman for the plaintiffs, said Monday. He claimed that the city is trying to hide the changes it is making to the city’s development regulations: “Trying to hide it will only lead to more conflict.”

Mary Engel, one of the plaintiffs and former president of the Austin Neighborhood Council, focuses on new regulations the City Council was trying to pass before the end of the year. This includes allowing three homes on each lot designated as single-family (SF-1 and SF-2) or single-family residential (SF-3); removing regulations regarding attached apartments and guest houses; Limiting the applicability of McMansion standards to plots of land containing only one house. The proposal would also allow tiny homes up to 400 square feet.

Engel, a vocal opponent of the regulations struck down by the court, is also concerned about the impact the proposed rules, known as HOME, or Home Options for Moderate Income Empowerment, would have on single-family neighborhoods. She said she is working to alert people and encourage them to come out to speak at tonight’s Planning Commission hearing about those regulations.

The commission and City Council have already held a joint hearing, and the council is scheduled to hold another hearing on Dec. 7 before voting on the changes. However, it seems likely that someone will challenge these new rules as well, regardless of the number of hearings.

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