City of Austin officials are scheming to circumvent Travis County District Judge Soifer’s March 2020 ruling, which orders the city to recognize notice and protest rights when rezoning properties. The city quietly filed last month with the court a “motion to clarify,” which actually sought to eviscerate her order. Late last week, Judge Soifer ruled again against the city.

The city’s approach to the land development code revisions continues to be unwise, divisive, and costly. Rather than convening a community-wide stakeholders’ group to develop a consensus-based revised land development code, the city is hellbent on trying to avoid the supermajority council voting requirement under protest rights. The motion to clarify appears to be just the city’s first attempt to undermine Austinites’ property rights that interfere with its unpopular, developer-backed proposals. Such tactics will further divide our community during a pandemic and social tumult. They also will run up more costly and unnecessary legal fees for both sides.

To recap, back on March 18, the court ruled that the city had violated state law requiring notice and protest rights when rezoning properties. She issued an injunction enjoining the illegal acts of the city, the council, and the city manager. The injunction requires that they recognize property owners’ protest rights, based on state law, whenever the city proposes “a change to a zoning regulation or zoning boundary” of residents’ properties. If owners file a written protest, the city can’t rezone the property without nine of 11 council votes (a clear council consensus designed to prevent unwise and arbitrary government action). The mayor and six council members decided in April to file a costly appeal, rather than pursue a consensus, collaborative approach with the community. (Council Members Pool, Kitchen, Tovo, and Alter voted against the appeal and support protest rights).

Unwilling to wait for the court of appeals’ decision, the city decided to try to evade Judge Soifer’s injunction. The city’s motion to clarify basically asked the court to give the city permission to use several ploys to rezone without having to provide state-mandated notice and protest rights. Not surprisingly, the court rejected the city’s motion for lack of jurisdiction. (As noted on the plaintiffs’ response in opposition, there are few rules of procedural law as fundamental as the rule that a trial court loses jurisdiction when a case goes on appeal.)

In the motion, one of the city’s proposed tricks would be to keep the same single-family zoning classification (SF-3) but change the regulations to allow more density. The city stated that it wanted to be able to rezone to allow two additional units on every SF-3 zoned lot (the most common single-family zoning classification in Austin). The city contends it can avoid notice and protest rights by simply keeping the same classification terminology (SF-3), even though it would be changing the zoning regulations to allow more density. State law, however, requires cities to recognize protest rights whenever there is “a change in a zoning regulation,” which the city clearly is attempting with this scheme. All the city’s legal sleight-of-hand and word games can’t change that.

We believe that the city is going to continue this underhanded approach. In fact, recently, members of Austin’s Planning Commission and City Council discussed publicly trying to skirt the court’s order and your rights.

Community Not Commodity is committed to defending you from the City of Austin’s illegal and unwise attempts to radically rezone the homes, neighborhoods, and small businesses that have made this city a unique and wonderful place to live. Whether the battle is in court or in the court of public opinion, we’ll be there to make sure you and your neighbors are protected.

Together we can build an Austin for everyone!