Land Development Code Rewrite Proposed Amendments

Since the beginning of the Land Development Code rewrite process, AURA has supported a code rewrite to create an Austin that’s affordably and environmentally sustainable with opportunities open to everyone.

The first draft of the rewrite was a promising step towards that aim. However, the second draft was backpedaled on that progress

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 

  1. Missing middle housing in greater or equal to the total unit counts in draft 1
  2. 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:

  1. to provide missing middle housing through so-called “gentle density” in transition-zones
  2. 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

UnitsFAR
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

  1. Removes the necessity to subdivide the lot thereby reducing delays and administrative costs. 
  2. Allows more efficient land use for large lots that are irregular in size or that don’t have adequate frontage width for legal subdivision.
  3. 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

  1. 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.”
  2. 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.

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