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 The LDC is outdated, very restrictive, and widely recognized as a major contributor to the housing crisis.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.

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

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

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.

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

• TX law prohibits the tax assessor from appraising a residence homestead as any other use, regardless of zoning
• Recently changed TX law requires a tax election if the City raises rates more than 3.5%, down from 8%
• The broader the upzoning, the more distributed the demand

It’s 2019, the city is entering its 5th (plus) year trying to amend our land development code. As housing prices continue to increase – and exacerbate the number of people experiencing homelessness – our city is now deep in the midst of a housing crisis. Though our unemployment rate is low, people are having to commute from further and further away. With all these issues, we are finally starting to see real change. We passed our largest Affordable Housing bond last November in addition to electing a slate of pro-housing leaders. In May, Austin City Council directed staff to jump start the land development code rewrite process; Staff submitted their first draft on October 4th.   

As our city digs into the first draft of the land development code, there are homeowners that are worried their property taxes are going to increase. Part One of the context for this argument is to analyze the current property wealth appreciation in the status quo, without any upzonings. The median list price for Austin homes has gone from $234k in 2010 to $399k this year, which equals about a 70% increase. As properties appreciate in value, appraisals increase in value also. 

However, upzoning, by itself, doesn’t raise a residence homestead property’s appraised value; it’s based solely on its use as a residence homestead. 

Per TX law: (d)  The market value of a residence homestead shall be determined solely on the basis of the property’s value as a residence homestead, regardless of whether the residential use of the property by the owner is considered to be the highest and best use of the property.

To be clear, assessments of homesteads do not happen in a vacuum. Even if the assessment for a single property upzoned to multi-family or mixed-use remains as a homestead, the demand in that area could increase. This increase in demand, if associated with higher sales prices than would have occurred otherwise, would result in a higher appraisal. Another way to think of this scenario, when a school suddenly gets a higher rating, this would also function as an increase in demand. Or if an area got a new amenity, or popular business opened nearby, that would also result in higher demand. In contrast to the last two scenarios, upzoning demand shocks can be minimized by broadening the upzoning. The broader we upzone for multi-family and mixed-use, the broader the demand will be spread out.  

For an (extreme) example, an outlier, we can look to what would happen if a single family house was upzoned to allow downtown zoning. This happened here in Austin when Rainey Street was upzoned to Central Business District (CBD) zoning in 2005. And from 2005 to 2019, Rainey Street has grown substantially. Where before, single family homes sat blocks away from downtown, now high-rises and entertainment venues now sit. Where a dozen-plus families lived before, AISD reportedly now runs school bus service down Rainey Street. 

Rainey street 2009 vs 2018 #atxrising #2009vs2018 pic.twitter.com/P7MVDghIWe

— Kaz 🏚🚍🚏🚲🏃🏘️🏙🌐 (@chris78701) January 14, 2019

Even though we are a city that has faced population growth year over year since our inception, change still elicits angst. It was that angst that was reflected in June when the last [single family] house on Rainey St. went on sale. One article notes, “[the] family home at 71 Rainey St. was built in 1910 and bought by [the current owner’s] grandparents in the 1940s.” 

Another story points out that “the house is listed online for $2.6 million. Travis County appraised the property at $1.1 million this year, nearly four times the appraised value in 2014.”

Nearly 14 years after being upzoned, one wonders what the property tax impact was to the owner. The property’s assessed value, appraised value, and listing price is $175k, $1.1m, and $2.6m, respectively.

While the property’s value skyrocketed in price, the property owner paid $3k in property taxes last year (~$9/day). The 10% cap on appreciation insulated the owner while their wealth increased multiple times over the years, that’s the system put into place. Some would say the system worked, the property owner was still paying a lot less in wealth taxes than many other people in the city with property valued at far less than $2.6m dollars.

Source: TCAD

Taking this extreme example, while the property increased substantially in value, the owner still only paid on average ~$276 per month. Or ~$9 a day. To be clear, this amount of money is/can be a significant burden to people, rejecting upzoning doesn’t address that issue. If we want to help people choose to stay in their house as property taxes (and their wealth) increase, we should offer them direct assistance and financial tools to do so. 

For example, California recently legalized public banks. Bringing public banks to Austin would be a way for disadvantaged property owners to access capital and build additional housing or mixed use on their property so they could afford property appreciation. 

In addition to TX’s 10 percent cap, there’s other exemptions such as the Homestead Exemption in addition to exemptions for seniors and veterans. Worth noting, Austin is a majority renter city, these exemptions do not apply to them nor to (small) businesses. 

While property owners in the city enjoy numerous exemptions, the city, and certain other taxing entities, are now required to go to voters if they adopt “a rate exceeding the 3.5 percent voter-approval rate.” In other words, even if upzoning increased housing demand in Austin, City Council would need to go to voters to approve higher tax rates that are much lower than increases we’ve seen over the past few decades.

Another factor for increased property taxes that many people face is the lack of wage growth or almost zero wage growth for retirees. Though this is an important issue that many Austinites are facing on a daily basis, we do not fix it by disallowing more people to live inside the city. We need more equitable rules that the City is, frankly, unable to adequately address. 

To face these issues of equitable growth, we need more housing, not less.

“We can work together to break down rules that stand in the way of building new housing and that keep families from moving to growing, dynamic cities.”

— President Obama, remarks to the U.S. Conference of Mayors,
January 21, 2016

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In 2016 the Obama Administration released its Housing Development Toolkit to help address the “local barriers to housing development [that] have intensified, particularly in the high-growth metropolitan areas increasingly fueling the national economy”. 

The toolkit lists several actions communities can take to help cities:

1. “protect homeowners and home values while maintaining housing affordability”
2. “reduce commute times, and increase use of public transit, biking and walking”
3. “reduce economic and racial segregation”
4. “[reduce] greenhouse gas emissions”

Needless to say, Austin is one such “high-growth” metropolitan area, where “housing production has not been able to keep up with demand”, thus “exacerbating the housing affordability crisis.”

That affordability crisis along with protecting the environment and decreasing traffic are the main reasons that our city is rewriting its Land Development Code. Below we list the recommendations from the Obama Housing Toolkit and how they are implemented, or not, in Austin’s proposed Land Development Code.

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“In more and more regions across the country, local and neighborhood leaders have said yes, in our backyard, we need to break down the rules that stand in the way of building new housing – because we want new development to replace vacant lots and rundown zombie properties, we want our children to be able to afford their first home, we want hardworking families to be able to take the next job on their ladder of opportunity, and we want our community to be part of the solution in reducing income inequality and growing the economy nationwide.”

From Obama’s Toolkit	In Austin’s Code Rewrite
Establish by-right development “by-right” development allows projects to be approved administratively when proposals meet local zoning requirements. Such streamlining allows for greater certainty and more efficient development and, depending on a locality’s regulatory approach, supports lessening of barriers from density limits and other zoning requirements.	The new code allows more by-right development in almost every part of Austin, be it multi-family apartments along corridors, missing middle housing (duplexes up to 10-plexes) in transition zones, or accessory dwelling units and duplexes in small-scale residential lots.
Streamline or shorten permitting processes and timelines  Permitting processes can introduce yet another source of cost and uncertainty in the effort to increase housing supply through production. Unnecessarily lengthy permitting processes restrict long-run housing supply responsiveness to demand.	The new code streamlines the patchwork of regulations that make up our current code into a simpler, more unified code.
Eliminate off-street parking requirements Parking requirements generally impose an undue burden on housing development, particularly for transit-oriented or affordable housing… By reducing parking and designing more connected, walkable developments, cities can reduce pollution, traffic congestion and improve economic development.	The new code reduces or eliminates minimum parking requirements along major corridors defined in the Austin Strategic Mobility Plan and the Imagine Austin comprehensive plan.
Enact high-density and multifamily zoning Local zoning code changes that allow for the development of higher-density and multifamily housing, especially in transit zones, can help to alleviate some of the pressure of the growing population in many city centers.	The new code allows for denser multi-family apartments along major corridors, and “missing-middle” homes like 4-plexes and townhomes in “transition zones” near corridors.
Allow accessory dwelling units Accessory dwelling units can expand the available rental housing stock in areas zoned largely for single-family housing and can address the needs of families pulled between caring for their children and their aging parents.	The new code allows for Accessory dwelling units (garage units, granny-flats, etc) in almost all areas of Austin.
Establish density bonuses Density bonuses encourage housing development and incentivize the addition of affordable housing units by granting projects in which the developer includes a certain number of affordable housing units the ability to construct a greater number of market rate units than would otherwise be allowed.	The new code includes density bonus programs that incentivize the addition of Affordable units everywhere in Austin.

The following recommendations are either not allowed under Texas State Law (2, 8, 9), or would be enacted separately from the land development code rewrite:

2. (Tax vacant land or donate it to non-profit developers)
8. (Employ inclusionary zoning)
9. (Establish development tax or value capture incentives)
10. (Use property tax abatements)

On October 5th, the day after the release of the first draft of the Land Development Code, over 50 AURA members and allies met to read through the code and provided code-level comments. 

You can see all of those comments, organized by categories and tag on our website here. 

We’ve also created an annotated PDF version of the code with the same comments inline here.

Finally, you’ll find both a summary and the details of the criteria for each zone here.

Note: the website and PDF comments are interlinked so you can click on a page number on the website to open the comment in the PDF or click on the footnote in the PDF to open the comment on the website.

Below is a summary of our most important findings. We look forward to working with staff and the City Council going forward to create a pass the best possible code we can so we can make Austin more affordable, environmentally sustainable, with opportunities that are open to everyone.

The Good and Great

We’re excited to see zoning for mid-scale residential housing like 4-plexes and 8-plexes near Enfield, 45th, and elsewhere in West and central Austin. These are high opportunity areas with short commute times to downtown and other job centers that have been excluded from more affordable housing development for too long. Council’s direction called for wider transition zones in areas like these that are not vulnerable to displacement, and we’re happy to see that reflected on the map.

We’re excited that the proposed code text would generally make ADUs easier to build in more places and in more ways. As discussed in the Obama administration’s Housing Development Toolkit, ADUs help remedy a number of housing needs including providing more affordable housing in every neighborhood, providing tax relief through rentals options, and helping “address the needs of families pulled between caring for their children and their aging parents, a demographic that has been growing rapidly in recent years”. Allowing ADUs in almost all of Austin will fulfill the council’s goal of adding all kinds of homes, for all kinds of people, in all parts of town.

We’re excited that duplexes are allowed to be larger than single-family homes in Residential House-Scale zones (because duplexes are allowed more floor area ratio [FAR]). This will provide a much-needed incentive to build more homes instead of just larger ones. Under the current code, even on lots where two units are allowed, too often we see demolitions result in only a larger single-family home being built instead of two homes. The increased FAR for duplexes will help mitigate that.

Strong Potential

Limited Site Plans are a great idea, but their usefulness will come down to the details. More work and more reform may be needed to make Missing Middle projects easier to build.

We’re hopeful for the preservation bonus — we love the idea in principle. We’re eager to see testing to evaluate its feasibility on the ground.

Needs to Change

Minimum lot sizes in Residential House-Scale zones are reduced slightly, but still enormous at 5,000 square feet. AURA has long called for eliminating minimum lot sizes entirely, and we will continue to do so. It is crucially important that we at least reduce them by half or more in this revision if we want to become a more affordable and equitable city.

Minimum lot sizes serve no other function than to make neighborhoods more expensive (See The Color of Law: A Forgotten History of How Our Government Segregated America by Richard Rothstein). They are big a reason why Austin is among the most segregated city in America by race and income. 
Council direction to staff recommended reducing minimum lot sizes “to achieve the goals elsewhere in this document”. While the current draft nominally follows this guidance, it is our firm belief that it needs to taken significantly farther.