Who should determine what housing can be built in Austin?  Austin’s democratically elected city council or an archaic process that only gives power to property owners?

Groups opposed to a new land development code are suing to only include property owners and exclude renters from the discussion.  A local judge ruled in their favor and the case is pending appeal.

Austin is in a housing affordability crisis.  From 2010 to 2019, rents in Austin grew by 93%, the highest percentage increase of any major American city.  Austin’s zoning code, officially called the Land Development Code or LDC, was written in 1984. The LDC is outdated, very restrictive, and widely recognized as a major contributor to the housing crisis.

In 2016 and 2018, Austin voters elected a pro-housing majority to city council with a strong mandate to address Austin’s housing crisis and allow for more diverse and abundant housing.  Laura Morrison ran primarily in opposition to new housing against Mayor Steve Adler and received only 19% of the vote.  Voters rejected a ballot initiative to stall any new land use code.  Polls show a majority of Austinites support a new code.

In February 2020 the city council passed a new land use code on a second of three readings by a 7-4 vote.  Unhappy with their inability to stop the LDC rewrite at the ballot box or at council, opponents are turning to a “valid petition” to stop the process.

So what are “valid petitions” and why are they so undemocratic?

A “valid petition” is a process under state law for property owners near a specific property that is being rezoned to protest that rezoning.  The property owners of 20% of the land within 200 feet of a rezoning must sign a “valid petition” for it to be valid.  Normally a rezoning requires a simple majority 6 out of 11 votes on city council to pass.  A valid petition changes the required votes to 3/4ths, or 9 out of 11 votes.

More than 50% of Austinites are renters.  They do not get a say or vote on these petitions.  The 20% requirement is based on eligible land, not eligible property owners.  If you own twice as much land as someone else, your protest counts for twice as much.  Rich landowners who own large amounts of property have more influence than small landowners of more modest means.  Absentee landlords have more say than most actual Austin residents.

The process was designed for individual zoning cases but opponents of a new code want it to apply to a broad land use code rewrite.  If the lawsuit stands, only 3 council members and a small fraction of property owners could trump the votes of hundreds of thousands of Austinites who elected a pro-housing majority to council.

The four council members who oppose the new land use code represent wealthier and whiter West Austin districts with larger lot sizes.  The current code prohibits anything but expensive single family homes from being built on most of the land in their districts.

Opponents of the new code portray their lawsuit as a fight of the people against powerful interest groups.  But is a process really an accurate reflection of the will of the people when it excludes the majority of Austinites?  Is it really a tool for the “little guy” when it gives those who own more property more power?  Should a minority of property owners in West Austin be able to veto more diverse and affordable housing in their neighborhoods?

The recent decision by the Travis County District Court ruling that policy changes such as the land development code rewrite are subject to zoning petition protests by homeowners is disappointing. Unless overturned, the ruling effectively requires a super-majority of City Council members to pass many of the meaningful reforms that are desperately needed in Austin and in all Texas cities.

While we’re optimistic that the decision will be both appealed and overturned, we’re also confident that regardless of temporary setbacks such as this both the land development code rewrite and other ways to increase our desperately limited housing supply will be found and implemented.

Furthermore, we are confident that an even greater majority of people vote for truly progressive elected officials, at every level of government and in every branch, who understand how urgent and necessary these changes are.

Furthermore, we believe that the City Council could today pass some important measures. Several are detailed below. As these measures only reference the text of the land development code and not the zoning, they could be passed in spite of the ruling.

We look forward to working with the city and all those in favor of progress to rebound from this temporary setback and create an Austin that is truly for everyone and not just the few.

Proposed Changes

1) Preservation Bonus

Implement House Scale Preservation on residential properties (SF-1, SF-2, SF-3) as defined in exhibit 1

Implement Multi-Unit Preservation Incentive for multifamily properties (all zones more intensive than SF-3) as defined in exhibit 2

2) Compatibility

Compatibility is triggered by zoning but not current use.

Compatibility Height Setback Distance from the lot line of the triggering property:

* Less than 50 feet = Overall height shall not exceed 35 feet

* Between 50 and 100 feet = Overall height shall not exceed 45 feet

* Over 100 feet = Overall height set by zone standards

3) Setback changes

For all residential and multifamily zones:

* Reduce rear setback from 10 feet to 5 feet.

* Reduce side street setback from 15 feet to 10 feet.

4) ADU changes

Eliminate parking requirements for ADUs.

Allow ADU’s city wide on any residential or multifamily lot including SF-2.

5) Minimum lot size and width:

* For all zones with a minimum lot size that is greater than 5,000 sf shall be reduced to 5,000 sf * For all zones with a minimum lot width that is greater than 45 feet shall be reduced to 45 feet

Exhibit 1)

(A) Purpose and Applicability.

(1) By providing development incentives for maintaining certain existing structures, this section encourages preservation of the City’s older housing stock while increasing opportunities for new housing.

(2) This section applies to all residential development on sites within a Residential House- Scale Zone.

(B) Administration and Enforcement.

(1) To request a development incentive under this section, an applicant must submit a request on a form provided by the director concurrent with a development application. The request must include information required by the director to determine whether the proposed development and the existing structure sought to be preserved comply with all applicable requirements.

(2) The director may establish requirements for administering and enforcing this section, including procedures for:

(a) Determining whether an existing structure meets the requirements for preservation under Subsection (D)(1); and

(b) Monitoring compliance with limitations on altering or expanding a preserved structure under Subsection (D)(2).

(C) Preservation Incentives.

(1) If the director approves a request to preserve an existing structure under Subsection (D), the following incentives apply to development located on the same site as the preserved structure:

(a) Development may exceed the maximum number of units allowed on a site in the base zone by one unit;

(b) The preserved structure does not count towards the maximum floor area allowed for a site in the base zone;

(c) Additional units are not subject to minimum parking requirements; and

(d) Within the Residential-2A (R2A), Residential-2B (R2B), and Residential-3 (R3) zones, development may not exceed a maximum impervious cover of:

(i) 45 percent, if the site contains two units;

(ii) 50 percent, if the site contains three units; and

(iii) 55 percent, if the site contains four units.

(2) Except as provided in Subsection (C)(1), development approved under this section must comply with all applicable requirements of this Title.

(D) Preservation Requirements. The preservation incentive established under Subsection (C) applies to proposed development only if the director determines that all applicable requirements of this subsection are met.

(1) Eligibility Requirements. The director shall approve a request to apply the preservation incentive established under Subsection (C) if:

(a) For at least 30 years, the structure has existed as the principal use on the site and has remained in the same location;

(b) All of the existing structures on the site of the proposed development were constructed in compliance with City Code; and

(c) The site complies with all applicable requirements of this Title, including Article 23-2H (Nonconformity); and

(d) The proposed development for which the incentive is sought will increase density on the site by at least one dwelling unit.

(2) Alterations to Original Structure. The preserved structure may not be modified or altered except as follows:

(a) Expansion of Structure. The preserved structure may not be modified or altered to exceed the maximum floor-to-area ratio allowed for the use in the applicable base zone.

(b) Wall Demolition and Removal.

(i) Except as provided in Paragraph (iii), no more than 50 percent of exterior walls and supporting structural elements, including load bearing masonry walls, and in wood construction, studs, sole plate, and top plate, of an existing structure may be demolished or removed. For purposes of this requirement, exterior walls and supporting structural elements are measured in linear feet and do not include interior or exterior finishes.

(ii) The exterior wall of the preserved structure must be retained, except that a private frontage, per Section 23-3D-5 (Private Frontages), may be added to a preserved structure that does not have a private frontage.

(iii) Structural elements, including framing, may be replaced or repaired if necessary to meet health and safety standards. A repair or replacement

Exhibit 2)

of a structural element is necessary to meet minimum health and safety standards when the repair or replacement is required by the building official, the code official, the Building and Standards Commission, or a court of competent jurisdiction.

(c) Roof Alterations.

(i) If the structure has a side-gabled, cross-gabled, hipped, or pyramidal roof form, the addition must be set behind the existing roof’s ridgeline or peak.

(ii) If the structure has a front-gabled, flat, or shed roof form, the addition must be set back from the front wall one-half of the width of the front wall.

(iii) Retention of the original roof configuration and pitch up to the greater of:

• 15′ feet from the front façade; or

• The ridgeline of the original roof.

(d) Alteration or Replacement of Foundation. Replacement or alteration of an original foundation may not change the finished floor elevation by more than one foot vertically, in either direction.

(e) Relocation Prohibited. A preserved structure may not be relocated.

(A) Purpose and Applicability.

(1) By providing development incentives for maintaining certain existing structures, this section encourages preservation of older housing stock while increasing opportunities for new housing.

(2) This section applies to all residential development on sites within a Residential Multi- Unit Zone.

(a) Exception.

This section does not apply to the Residential Multi-Unit 1 (RM1) Zone.

A property zoned RM1 that participates in the preservation incentive must comply with Section 23-3C-3060 (House-Scale Preservation Incentive).

(B) Administration and Enforcement.

(1) To request the development incentives established in this section, an applicant must submit a request on a form provided by the director concurrent with submittal of a development application. The request must include information required by the director to determine whether the proposed development and the existing structure sought to be preserved comply with all applicable requirements.

(2) The director may establish requirements for administering and enforcing this section, including procedures for:

(a) Determining whether an existing structure meets the requirements for preservation under Subsection (D)(1); and

(b) Monitoring compliance with limitations on altering or expanding a preserved structure under Subsection (D)(2).

(C) Preservation Incentives.

(1) If the director approves a request to preserve an existing structure under Subsection (D), the following incentives apply to development located on the same site as the preserved dwelling units:

(a) Development may exceed the maximum number of units allowed in the base zone by 50 percent; and

(b) The structures that contain the preserved dwelling units do not count towards the maximum site-level floor area allowed in the base zone.

(2) Except as provided in Subsection (C)(1), development approved under this section is subject to all applicable requirements of this Title.

(D) Preservation Requirements. The preservation incentives established under Subsection (C) apply to proposed development only if the director determines that all applicable requirements of this subsection are met.

(1) Eligibility Requirements. The director shall approve a request to apply the preservation incentives established under Subsection (C) if:

(a) For at least 30 years, the principle use of the site of the proposed development has been residential use;

(b) At least one or more of the existing structures on the site was constructed at least 30 years prior to the application date;

(c) The proposed development will retain a minimum of 75 percent of:

(i) The existing dwelling units; or

(ii) The dwelling units that existed on site five years preceding the application date; and

(d) All of the existing structures on the site of the proposed development were constructed in compliance with City Code;

(e) The site complies with all applicable requirements of this Title, including Article 23-2H (Nonconformity); and

(f) The proposed development that will receive the incentive will increase density on the site by at least 10 percent.

(2) Alterations to Original Structure. Each existing structure with preserved dwelling units may not be modified or altered except as follows:

(a) Expansion of Structure.

The structure may not be modified or altered to exceed the maximum floor-to-area ratio allowed for the use in the applicable base zone. 

(b) Wall Demolition and Removal.

(i) Except as provided in Paragraph (iii), no more than 50 percent of exterior walls and supporting structural elements, including load bearing masonry walls, and in wood construction, studs, sole plate, and top plate, of an existing structure may be demolished or removed. For purposes of this requirement, exterior walls and supporting structural elements are measured in linear feet and do not include interior or exterior finishes.

(ii) The front exterior wall of each existing structure that faces the primary street must be retained, except that a private frontage may be added to a existing structure that does not have a private frontage.

(iii) Structural elements, including framing, may be replaced or repaired if necessary to meet minimum health and safety standards. A repair or replacement of a structural element is necessary to meet minimum health and safety standards when the repair or replacement is required by the building official, the code official, the Building and Standards Commission, or a court of competent jurisdiction.

(c) Roof Alterations.

(i) Retention of the original roof configuration and pitch up to the greater of:

• 15′ feet from the front façade; or

• The ridgeline of the original roof.

(d) Alteration or Replacement of Foundation. Replacement or alteration of an original foundation may not change the finished floor elevation by more than one foot vertically, in either direction.

(e) Relocation Prohibited. A preserved structure may not be relocated. 

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.

1. 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.

1. 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).
2. 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
3. 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
4. Step up to be sustainable, equitable and connected (to support even bigger investments in public housing and transit)
5. 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.

1. Make fee-simple ownership more affordable and realistic for more Austinties 
2. Help facilitate the creation of the exact supply we need (Re-legalize traditional development, Re-legalize Hyde Park)
3. 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.  

1. Improve quality of life for all, across the city.
2. Unlock dreams for small/independent businesses
3. Create walkable/lovable places using proven wisdom with zero public subsidy or massive infrastructure investments
4. 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: 

A further 40% decrease in both zones

40% of 11374 

4550 more mm capacity lost

50% of 11374

5687 more mm capacity lost

60% of 11374

6824 more mm capacity lost 

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.

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’.” 

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.