Much of conflict over Austin Land Development Code rewrite occurs over the “Transition Zones”.
During the city council meeting on February 12th, Mayor Adler and Council Member Tovo discussed the possibility of reducing the size of these Transition Zones to two-lots off the corridor across the city.
Of course, simply doing so without making other substantial changes to the second draft of the code rewrite would significantly decrease housing capacity, putting us even farther away from our unanimously council-approved goals in the Strategic Housing Blueprint and Austin Strategic Mobility Plan.
By our estimates, doing so would result in a loss of 4,500 to 6,800 units of missing middle capacity and, via compatibility, would prevent multifamily housing from being built along transit corridors, thus further reducing capacity.
However, if the Council is genuinely concerned with reducing transition zones while creating a code that makes our city affordability, environmentally sustainable, and equitable, (not mention walkable, weird, original, progressive, and cool) we believe there is a compromise-code that could satisfy all of these concerns.
Such a code would, in addition to reducing the size of these Transition Zones to two-lots off the corridor across the city, would:
Eliminate compatibility requirements.
We simply must unlock the corridors. If there are no Transition Zones, then compatibility requirements would prevent multifamily apartments building along the corridor. Thus, without significant Transition Zones, we have to eliminate compatibility requirements.
Put Imagine Austin and years of consensus planning into action.
Minimum R4 zone across the city
The code originally planned on creating missing middle housing supply almost exclusively in Transition Zones. By further reducing the Transition Zones, we lose even more of this entirely sensible form of housing. However, allowing a minimum of R4 zones everywhere would provide more missing-housing than even the first draft’s Transition Zones, while simplifying the code and distributing development across the city.
Shift development pressures away from finding the cheapest lot zoned with a certain intensity, and back to where the highest demand is (high opportunity, walkable and transit connected areas).
Give small-scale developers and property owners a real opportunity to compete and deliver products in a competitive way, this could do the most to reduce speculation, drive up competition for building missing middle infill and lead to lower priced units for all
Stand up and lead for the region, the state and the nation. Do what California can’t do, and beat Portland and Minneapolis to the punch
Step up to be sustainable, equitable and connected (to support even bigger investments in public housing and transit)
Fight back against the state and revenue caps by controlling your own destiny with a model that’s more efficient to serve/support, and will deliver more revenue all while reducing the proportional tax-burden on single-family homeowners
Reduce Minimum Lot Sizes to 2500 SF in All Zones and Simplify subdivision
By mandating a minimum lot size we make people pay for land they don’t want or need, making all forms of housing less attainable for non-wealthy Austinites.
Reducing minimum lot sizes while simplifying the subdivision process allows all kinds of housing for all kinds of people in all parts of town.
Make fee-simple ownership more affordable and realistic for more Austinties
Help facilitate the creation of the exact supply we need (Re-legalize traditional development, Re-legalize Hyde Park)
Give residents the tools to make flexible and creative solutions work and ignite truly affordable options to subdivide, build and deliver supply
Gentle Mixed-Use By-Right
Limiting residential-scale mixed-use development prevents exactly the kinds of neighborhoods people love (Mueller, Hyde-Park)
Allowing residential-scale mixed-use development makes neighborhoods walkable, weird, family-friendly, less car-dependent.
Improve quality of life for all, across the city.
Unlock dreams for small/independent businesses
Create walkable/lovable places using proven wisdom with zero public subsidy or massive infrastructure investments
Reach our mode-shift and mobility goals
Appendix – Capacity Estimates
Draft 2 took:
R4 from 1.96% of city
To 1.47% of city
25% decrease
RM1 from 1.31 to .89% of city
32.1% decrease
Resulting in 5087 decrease in missing middle capacity
5087/16,461
31% decrease in city-wide missing middle capacity
Taking transition zones down to two-lot equivalent citywide would result in somewhere between a 40-60% further reduction in transition zoned area:
Most of Austin’s zoning regulations prevent the construction of missing-middle housing like townhouses, duplexes, and fourplexes. In fact, according to the Imagine Austin Comprehensive Plan land inventory about 80% of Austin’s land zoned for residential use is zoned single-family. But zoning regulations aren’t the only obstacle to these types of housing, especially in wealthy west Austin neighborhoods. Another type of restriction, deed restrictions, can also serve to prevent the construction of anything but large, expensive, single-family homes.
Deed restrictions are by definition private agreements that restrict the use of real estate in some way, and are listed in the deed. The seller may add a restriction to the title of the property. Often, developers restrict the parcels of property in a development to maintain a certain amount of uniformity.
The history of deed restrictions in the United States is murky and by some accounts goes as far back as the 17th century. The early deed restrictions were used to separate land uses which were considered nuisances such as industrial or animal husbandry from residential, but in the late 19th to early 20th century deed restrictions increasingly became not just a tool to separate land-uses, but a means to preserve property values by dictating specifics such as what type of residential building could be built or the minimum lot size was allowed.
Like most American cities, throughout the 20th century Austin grew and evolved outward from the center into various neighborhoods as developers platted chunks of land big and small into subdivisions and created restrictive covenants for each particular subdivision as they saw fit. Some developers chose to restrict the number of homes that one could build on a lot, some chose to allow only one-story buildings, while some spelled out how a garage or a storage shed were to be attached to the primary building structure. Some restricted who could or could not buy a house in the subdivision based on the color of their skin or their religion.
Although racist deed restrictions were eventually deemed unconstitutional, it is a widely accepted fact that under the guise of “protecting property values” many of the restrictive covenants that were used during the 20th century were meant to elevate the value of the property and to keep out lower-income earners which often translated to people of color.
While lecturing at the University of Texas at Austin, Eliot Trettor, who is currently a professor at the University of Calgary, published a report called “Austin Restricted” https://repositories.lib.utexas.edu/handle/2152/21232 where he examined the effect of racial deed restrictions on Austin’s geographic segregation. In the course of writing this report Eliot worked closely with the Travis County clerk to create maps of Austin’s various deed restrictions, some of which were put in place not only for overt racist purposes, but also to restrict land use and development, such as the deed restrictions we typically deal with today.
Map of Land-use deed restrictions from Eliot Tretter’s Austin Restricted.
As is immediately obvious from the above map, most of the land use deed restrictions exist West of I-35, which has been a traditionally whiter, wealthier part of town with a lot of political clout and control over its land. However, when comparing the land use deed restriction map with the map of the areas most vulnerable to displacement (see below) it is immediately apparent that the more vulnerable areas have few to no land use deed restrictions. In fact if one were to superimpose the maps one would see a stark geographic contrast between the areas experiencing displacement and areas with restrictive land use covenants.
Deed restrictions are essentially private zoning; they do not fall under city regulations, but are legal instruments which are protected and enforced through the courts by the residents of a subdivision where the deed restrictions apply. The City of Austin explicitly states that they do not pay attention to or enforce deed restrictions. When a developer or a homeowner submits a project for permitting, deed restrictions are not a part of the city’s review process.
Deed restrictions on older properties are hard to track down. The original documents often get lost as the property changes hands over the decades. The research for old deed restrictions involves trips to the Travis County Clerk’s office where one can look up information on the in-house computer if the deeds for the particular area have been digitized, or look through microfiche if they haven’t. Needless to say, it’s not something most people have time or desire to do.
Although they vary in language, most deed restrictions restrict the number of homes or the type of home that can be built in a particular area and are most often far more restrictive than the City of Austin zoning for the same property. While not all neighborhood associations are active in defending deed restrictions, some are very protective of their restrictive covenants.
Because of the laborious process to find relevant deed restrictions, many homeowners don’t even know that restrictions on their property exist. However, some areas of Austin have the means and the will to enforce their deed restrictions and take anyone to court who dares break them. Neighborhoods like Allandale, Crestview, Brykerwoods, and Tarrytown are known for keeping a close eye on anything that does not comply with their deed restrictions and they are not afraid to go after developers and homeowners to enforce them. There have been lawsuits over deed restrictions in Allandale, Crestview, and Tarrytown where homeowners and developers had to tear down ADUs and duplexes or delay their project by months and incur high legal fees.
Below is en excerpt from the 2009 Allandale NA newsletter:
“Attention to deed restrictions and resubdivisions in Allandale heightened with efforts to split up lots on Woodview, Montview and Shoalmont. They are separate cases but the end result would be a doubling of lots, from 5 to 10. Neighbors are opposed because they violate the amended deed restrictions which prohibits re-subdivisions without prior written approval of [66 ⅔] (%?) of the homeowners in the Shoalmont Addition. As Lorinda Holloway, one of the neighbors in the area contesting the subdivision states, ‘re-subdividing negatively impacts our property values, increases traffic, creates parking and safety challenges, increases impervious cover, and destroys the large lot style of the neighborhood’.”
Sign in the Allandale Neighborhood lawn.
Similar efforts have taken place in other parts of town. A homeowner in Brykerwoods, who happens to be an attorney, posted the following on Nextdoor:
“I will sue any owner in my neighborhood in violation of deed restrictions, it seems to me millennials are completely unaware of deed restrictions these days and think they can build whatever they want with a zoning change. If a lot says only a single family home can be built, then only a single family home can be built.”
And here is another, more recent example, of a restrictive covenant from the Barton Creek North HOA:
The text in the image reads: “The Barton Creek North subdivision was developed with very stringent deed restrictions to ensure everlasting beauty and continuity. In order to ensure that property values are maintained and consistent design guidelines are applied, the Barton Creek North Property Owners Association relies on our resident volunteer Architectural Control Committee and the expertise of architectural professionals. Each of our eleven gated communities is governed by their own unique set of deed restrictions. For example, properties located on golf courses are subject to buffer zone setbacks that require special attention, while other properties have condominium restrictions or specific landscape materials requirements.”
From a legal perspective, the city’s best path is to ignore deed restrictions when issuing building permits. However, from a moral perspective, the city cannot afford to ignore deed restrictions when planning for the future. The question we and our city leaders should ask is not whether the city should or should not enforce deed restrictions, but whether with the new LDC the most vulnerable areas of Austin will continue to bear the brunt of growth and development while the traditionally wealthier neighborhoods protect themselves from redevelopment and remain affluent single-family enclaves.
The City Council must take a decisive moral stand for equity and demand a far higher housing yield from areas of high opportunity which have until now maintained their single-family zoning status. Furthermore, the City Council should direct staff to examine deed restrictions in the high opportunity areas and provide flexible building rules in those areas in such a way as to provide maximum yield within the constraints of the restrictions. These could be, for example, allowing four detached single family homes rather than attached fourplexes, or allowing for smaller setbacks, or more flexibility with impervious cover, FAR, or even trees.
For the Land Development Code rewrite to be a success we need it to help us reach our city’s goals outlined in Imagine Austin, The Strategic Housing Blueprint, and The Austin Strategic Mobility Plan.
To that end, we propose the following amendments to draft two to make the third and final draft of the Land Development code one that all proponents of affordability, sustainability, and equity can proudly support.
1. Removal of Compatibility Triggers
Amendment Option 1
Remap transition zones in high opportunity areas or areas not subject to equity overlays to both allow
Missing middle housing in greater or equal to the total unit counts in draft 1
Ensure that corridor’s with multifamily (RM2 zones and above) have a large enough transition zone to not trigger compatibility requirements
Amendment Option 2
Remove compatibility requirements from multifamily zones (RM2 zones and above), especially in high opportunity areas or areas not subject to equity overlays.
Reasons
The original intent of transition zones in Draft 1 of the rewrite was two-fold:
to provide missing middle housing through so-called “gentle density” in transition-zones
to “map for compatibility” such that that high-density multi-family zones along corridors would be protected from compatibility requirements by of the missing-middle housing in the transition zone.
With the reduction or elimination of transition zones in Draft 2, we are not only losing missing-middle housing provided by the transition zones we are also potentially re-introducing compatibility triggers on the higher density multifamily zones along the corridor, thus losing the ability to build these types of housing as well.
2. Graduated FAR
Amendment
For R4 and RM1 zones – implement graduated FAR to match to council recommendations
Units
FAR
1
.35
2
.5
3-4
.65
5+
.8
Reasons
Single-family homes will always be the most expensive housing type available because the cost of the land is divided by one family instead of multiple families. Thus missing middle housing is a critical tool for increasing affordability, especially in high-opportunity areas.
To maximize the actual yield of missing-middle housing where we have zoned for that housing, it only makes sense to incentivize the construction of more units with increased FAR.
Doing so will ensure that lots with new construction don’t simply replace a smaller, older single-family home with a larger, more expensive single-family home. But rather, result in far more affordable missing middle housing like duplexes, fourplexes, ADUs, etc.
This is particularly problematic in R4 zones which, as of Draft 2, don’t allow any increase of FAR as units increase, making missing-middle housing impractical for this zone.
3. Remove Minimum Lot Sizes
Amendment
Remove minimum lot sizes for all residential and residential multi-unit zones
Reasons
Minimum lot sizes serve only to make neighborhoods more expensive and exclusive.
They are a legacy of our segregationist past and should not be considered a tool for responsible development.
4. Any Form Type for Missing Middle
Amendment
In all multi-unit residential zones (R2-R4/RM1) multiple units can be of any type.
For example, the 4 units of an R4 lot could be a fourplex, 2 duplexes or 4 ADUs. Form types can be mixed in any combination. Form type should have no bearing on FAR.
Reasons
Many deed restrictions in areas that the current draft zones for missing middle housing place restrictions on the form that additional units (ADUs, etc) can take. Often times, these restrictions are incompatible with the current draft’s restrictions for that zone.
For instance, a deed restriction may allow attached ADUs but the zone only allows detached ADUs.
While some of these deed restrictions may have lapsed due to lack of enforcement, many are still very much in place. Developers and homeowners will be unlikely to take advantage of extra units if they are uncertain about the possibility of being sued by their neighbors at some point during construction.
Furthermore, we see no reason to dictate form when it could result in the loss of any yield relative to planned capacity.
Additionally, giving more flexibility to form allows properties to evolve incrementally an owner’s needs change, their families change and the market and neighborhood grow and mature.
Finally, dictating forms will increase costs due to having to comply with more expensive building construction regulations, insurance requirements, and lending requirements.
5. Internal Guest Suite
Amendment
Allow all residential lots the ability to add an internal guest suite (“accessory apartment”).
[PC Amendment R26, passed 13-0, mistakenly labeled these INTERNAL ADUs, which are separated units with applicable building code, no internal connections and even the ability to condo-regime and sell—and confusion/mis-labeling led staff to oppose the amendment and it not being included in first reading’s consent agenda.]
This suite, while allowed to have full cooking facilities (if desired, not required), could have a size limit if necessary to encourage adoption (a reasonable size limit of 750-800 sf would still allow great flexibility for multigenerational setups, or having two bedrooms to allow a family as a tenant in one of these units).
It MUST connect to another unit with an internal door (thus not an ADU, which would be separated).
Own exterior entrance, not facing the front street
DOES NOT count against a lot’s maximum units allowed
Can be occupied by ANYONE regardless of age or familiar relations, but doesn’t add to the occupancy limits for the principal unit it is associated with
DOES NOT add any allowable FAR or IC (not an actual “unit”), but can be legally converted from existing space (ie garage) from an existing structure that is noncompliant.
Can be created with a new addition if the lot has available FAR and IC, ie complies with all base regulations of the zone
Reasons
This provision already exists in current code [§ 25-2-901 – ACCESSORY APARTMENTS.] to allow residents to provide space to house and care for aging relatives and neighbors, so it’s important we don’t lose this important flexibility in the new code, but to encourage these simple solutions (either easy conversions from existing space or simple additions) to be built and provide more housing by removing age restrictions and also having these guest suites not count as a dwelling unit.
Simply stated, we just don’t understand the downside of allowing part of a home to be used as another unit if the entire lot meets all other restrictions (FAR, parking, impervious cover, etc). Why not allow people to use some of the floor space to house another person instead of another, often unneeded, bedroom?
6. Group Residential and Sleeping Unit Definition
Amendment
Strikethrough indicates deleted text and bold indicates new text.
GROUP RESIDENTIAL. The use of a site for occupancy by a group who are not a family on a weekly or longer basis in which sleeping units are separate from, but located in the same building with, common areas that include kitchen, laundry, and other shared facilities. This includes, but is not limited to, fraternity and sorority houses, dormitories, residence halls, boarding houses, and cooperative housing. For the purpose of calculating density, each sleeping unit in a group residential use equates to a dwelling unit, and each sleeping unit may be occupied by no more than two six unrelated individuals.
CO-HOUSING. A residential development of three or more sleeping units in which, sleeping units are separate and detached from common areas that include kitchen, laundry, and other shared facilities. At most one sleeping unit may be attached to these common areas. Includes cooperative housing. For the purpose of calculating density, each sleeping unit in a co-housing use equates to a dwelling unit, and each sleeping unit may be occupied by no more than two six unrelated individuals.
SLEEPING UNIT. A room quarters or space in which people sleep, which can also include permanent provisions for living, eating, and either sanitation or kitchen facilities but not both. Such rooms quarters and spaces that are also part of a dwelling unit are not sleeping units.
Reasons
Under the second reading draft, the occupancy limit of group residential and co-housing uses is now effectively 1/3 that of any other uses. This is due to a new clause inserted into the second draft:
For the purpose of calculating density, each sleeping unit in a [group residential / co-housing] use equates to a dwelling unit, and each sleeping unit may be occupied by no more than two unrelated individuals.
In any other use, a dwelling unit may be occupied by no more than 6 unrelated individuals.
It goes without saying that under this language these uses would very rarely contribute to affordable housing, as they are intended to. Very few affordable housing developments would house people under uses that reduce their total occupancy by 2/3 when compared to other uses.
7. Group Residential as CUP in unpermitted R Zones
Amendment
Allow Group Residential with a Conditional Use Permit (CUP) in LA, RR, R1, R2A, R2B, R2C, where it is currently not permitted at all.
Reasons
Adult care of seven or more persons is allowed conditionally in all residential house-scale zones. Group residential is the self-caring and self-sufficient equivalent to this land use. Adults who voluntarily choose to live in a group residence should have at least the same rights as adults who live in an adult care facility, especially since such facilities are functionally equivalent in terms of housing.
We believe allowing group residential by CUP in less intense R zones will allow the Planning Commission to selectively stimulate the development of cooperatives and certain residence halls and senior living. Also, since the proposed code strips the group residential use of its occupancy exemption, there should be no concern about the occupancy of group residences compared to other uses, even in the least intense R zones. In the proposed code, a group residence now does not mean high occupancy: it means fewer kitchens.
Therefore, the amendment on the following page harmonizes the adult care 7+ and group residential land uses, in a way that gives the Planning Commission control over which developments can take advantage of the group residential land use.
8. Right-zoning
Amendment
To protect renters, right zone city-wide existing missing middle housing, including triplexes and fourplexes.
Reasons
Amendment Tovo #4 aimed to correct historical downzoning which rendered existing buildings non-compliant. There exist many buildings throughout Austin which can no longer be used as they were intended due to downzoning.
A comparison of Austin’s land use inventory with the proposed zoning is available here.
9. Minimum Zone for Use
Amendment
Any lot with a current use greater than it’s proposed zone will automatically be updated to the nearest zoning category to its current use.
Reasons
There is no reason a property that currently has a fourplex should be downzoned to a single-family home. This encourages, and in fact requires, that when these properties are eventually rebuilt that higher density properties be rebuilt as more expensive single-family homes.
10. Missing Middle for Large-Lot R zones.
Amendment Option 1
Allow a minimum of either 1300 sq. ft./unit FAR for all uses in all R zones as the current draft allows for duplexes in R zones.
Amendment Option 2
Allow fourplexes by right in all R zones on lots greater than 8000 sq. ft. With FAR of 0.4 and impervious cover 0.45 a lot of 10K sq. ft. can potentially offer four units at 800 sq. ft. each which is a reasonable amount for a 2 bed/2 bathroom house.
Reasons
Removes the necessity to subdivide the lot thereby reducing delays and administrative costs.
Allows more efficient land use for large lots that are irregular in size or that don’t have adequate frontage width for legal subdivision.
Provide additional incentive to build multiple smaller units rather than a single-family home by reducing resub fees.
11. Remove Renter/Owner Distinction
Amendment
Remove the renter/owner distinction for The Affordable Housing Programs.
Replace 23-4E-1030(A)(1) with:
1. Affordable Units
(a) A development participating in a density bonus program must include, at a minimum, the number of affordable units required by the applicable density bonus program.
(b) An affordable unit must be occupied by an income-eligible household as determined by the applicable density bonus or affordable housing incentive program and at an affordable rate in accordance with the corresponding income limits published annually by the director.
(c) An affordable unit shall be reserved for a minimum of 40 years from the date of a final Certificate of Occupancy is issued for the development.(d) Each unit of affordable housing has an earning limit. If over a year, the occupants’ averaged earnings exceed the limit but not exceed 133% of the limit, the penalty shall be 10% of the difference between the earnings and limit. If the earnings exceed 133% of the limit, the penalty shall be 3.3% of the earnings plus 50% of the earnings beyond 133% of the limit. The maximum penalty is 1/40th of the fee-in-lieu.
(e) If a unit of affordable housing remains empty for more than 1 month in a year, there is a pro-rated penalty of 1/40th of the fee-in-lieu.
Modify 23-4E-1030(J): remove the word “rental”.
Reasons
The Affordable Housing Programs (23-4E-1) currently has a distinction between renter-occupied and owner-occupied housing, with different time lengths, different rules, etc. This leads to complications like 23-4E-1030(K)(2). That clause, as we read it, allows an escape from the 99-year term of the owner-occupied rules, by, after 40 years, converting it to a rental unit. It is simpler to combine the cases and just refer to the “occupant”.
To account for the earnings difference for rental (60% in most places) and owner-occupied (80% in most places) in the code, the penalty is lessened between the earning limit and 133% of the limit.
12. Preservation Incentive
Amendment
23-3c-3060
Remove section D2b (wall demolition and removal) and section D2c (roof alterations). Replace with “The unit cannot be increased by more than 5% for three years after the bonus is used.”
Remove section D1b (All of the existing structures on the site of the proposed development were constructed in compliance with City Code)
Replace with structures not illegally expanded in the last 4 years.
Reasons
This will be simpler to administer. Monitoring percent wall removal for an unlimited amount of time will be extremely difficult.
13. Tree Preservation
Amendment
23-4C-1020
For the definition of reasonable use related to trees. Say that one tree can be removed if more units are being added to a lot beyond the density on the lot at any time in the past. Mitigation will be required for the removed tree.
14. Automatic Zoning Increases
Amendment
If after five years after the date of the adoption of this code, the City of Austin is not on track to meet its housing goals outlined in the Strategic Housing Blueprint, then all lots will automatically shift to the next higher zoning category (for instance, R3 would become R4, etc)
Reasons
Council passed the goals of the Strategic Housing Blueprint unanimously. If the current Land Development Code does not put us on track to reach the goals five-years into implementation, it only makes sense to increase the zoning to help us achieve our unanimously agreed-upon goals.
AURA is a grassroots, all-volunteer organization that advocates for an Austin that is inclusive, open to change, and welcoming to everyone.
Unfortunately, the second draft of the new Land Development Code rewrite is a significant step backward from the first. Despite council passing many important pro-housing amendments, significant resolutions and goals were either not incorporated, or rolled back entirely. Meanwhile, the current draft includes changes from the first draft that ignore or exacerbate our city’s housing crisis that are not referenced anywhere in any council directives.
In particular, we were disappointed to see the following:
The rollback of transition zones in Central and West Austin.
We believe this is directly counter to council’s directive to increase capacity in Central and West Austin, and counter the intent of council’s May 2019 resolution to increase opportunities for everyone in these high-opportunity areas.
The effective decrease in occupancy limits.
Our interpretation of the second draft is that The Group Residential and Co-housing use definitions have changed in such a way that makes their total occupancy 1/3 of a standard by-right development.
We cannot find any council direction to suggest that occupancy limits should be decreased from the current code, much less the first draft of the rewrite.
The status quo is broken and we need to take strong confident steps forward to address our housing crisis. We believe that council can address these issues, and other discrepancies, from the dais on the second readings. We look forward to working with them to create a new code that all proponents of affordability, sustainability, and equity can proudly support.
“Given the results of the 2018 election, City Council knows they have a mandate to pass a new Land Development Code as soon as possible. We encourage them to continue to listen to the truly progressive voices that elected them and deliver a code that meaningfully increases the supply and diversity of housing, particularly in central Austin.”
Kevin McLaughlin, Chair AURA Land Use Committee
Contact: Kevin McLaughlin, Chair AURA Land Use Committee +1 817-312-6800 kevin.mclaughlin70@gmail.com
