For those of us who reside in the Capitol City, the long saga of the city’s expensive and bitterly contested effort to overhaul its land development code is a source of extreme angst to some and endless entertainment for others. The most recent shoe to drop is the Houston Court of Appeals [14th] decision to affirm a trial court ruling that Austin must follow statutory written notice and protest provisions in order to proceed. The city had argued that the comprehensive code provision is analogous to the initial adoption of city-wide zoning, which is not subject to such requirements. It remains to be seen whether the city goes back to the drawing board or tries to get SCOTX to go along (which seems to us highly unlikely to happen).

Chapter 211, Texas Local Government Code, establishes the procedure by which cities may amend existing zoning regulations. Pertinent to this case are the requirements that the city (1) provide written notice of the changes to all property owners, and (2) allow property owners to file protests. The city did neither in this case, opting instead to provide only a general newspaper notice and to disallow property owner protests altogether (14,000 nevertheless filed protests). Nineteent property owners brought this suit in a Travis County district court seeking declaratory and injunctive relief, which the trial court granted. The city’s appeal was transferred to the 14th Court of Appeals.

The city’s argument that Chapter 211 only applies to zoning changes affecting specific properties or small areas, not to a city-wide scheme, fell on deaf ears. The court of appeals (rightly, in our view) interpreted the pertinent statutes according to their plain meaning, which do not distinguish changes based on their scope. Similarly, the court rejected the city’s argument that since the new code is “legislative” rather than “quasi-judicial,” it requires only public notice. Again, there is nothing in the statute about that. The city’s attempt to base its argument on California precedent from the 1960s, an inapposite case from the Fort Worth Court of Appeals, and a treatise failed for the same reason, as did its argument that if the city had to send written notice to more than 250,000 property owners in Austin, that would constitute an absurd result not intended by the legislature.

The trial court ordered that three-fourths of the Austin City Council had to approve a zoning change for classified property if at least 20% of the owners of such property filed protests. It appears that if the city is going to continue beating this horse, it’s going to have to send everybody who owns property in the city written notice, recognize protests, and then go through the regular process to a supermajority vote. With mayoral and council elections coming up in November, this whole mess appears headed for a major reset.

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