District Judge Jessica Mangrum has driven another nail into the City of Austin’s defense of three zoning ordinances. (Cause No. D-1-GN-19-008617, Acuna v. City of Austin.)
In an order issued December 8th, she ruled that the ordinances were void from the beginning for failure to follow statutory requirements. She ruled these actions exceeded the city’s authority and violated state law.
The violation was in not providing written notice to property owners and permitting protest of the changes in zoning regulations.
Austin City Attorney Anne Morgan issued this statement this afternoon: “We received Judge Mangram’s order today, which formalizes her earlier letter ruling. We are pleased that the judge did not issue the requested sanctions, as the city continues to make efforts to comply with all laws and judicial rulings related to the land development code changes.
“City management and City Council will follow the judge’s ruling,” the statement said.
New litigation possible over zoning
Although Mangram’s order confirmed the validity of Ordinance No. 20190509-027, passed May 19, 2019, plaintiffs in the Acuna litigation may well file another lawsuit against it. Plaintiff’s counsel, Austin-based attorney Douglas “Doug” Becker of Gray & Becker.
The press release Becker issued today states, “Plaintiffs’ attorneys are now assessing the legality of the City’s rushed passage last Thursday of Council Member (Leslie) Pool’s anti single-family ordinance. Ms. Pool repeatedly proclaimed that her ordinance did not change the zoning on anyone’s property, which appears contrary to the Court’s ruling. Nor did Ms. Pool and the Council consider the 16,000 filed protests against her ordinance, as if protest rights and their constituents’ views were irrelevant.”
As to whether litigation seeking to overturn those actions will be filed, Becker told the Bulldog, “I have to look at the facts as objectively as I can and decide what can we prove. I haven’t reached a conclusion yet.”
The City Council voted 9-2 December 7th to implement that ordinance by allowing up to three housing units, including tiny homes, on single-family zoned property; revise regulations that apply to property with two housing units; and remove restrictions on the number of unrelated adults living in a housing unit.
Court neither ordered sanctions nor permitted development
If it’s any consolation for the City of Austin Judge Mangram’s order makes no mention of sanctions. As the Bulldog reported November 27th, Becker had sought sanctions totaling $309,250. That was based on Becker’s calculations of $250 a day for each day the voided ordinances had been in effect.
The City’s letter to Judge Mangram December 4th argued that sanctions would be punitive and a deprivation of a right to a jury trial.
Plaintiffs’ attorney Becker responded with a letter to Judge Mangram December 5th to note the “defendants did not request a jury trial or pay the required jury fee….”
Further, he wrote, “the Court has some leeway in determining whether a case involves ‘serious’ sanctions…the Court can consider all the circumstances, including the fact that the City’s 2023-2024 budget is $5.5 billion, of which the Court can take judicial notice. The sanctions in the Plaintiffs’ proposed Order comprise a minuscule percentage of that budget.”
“The court didn’t address the issue of sanctions in its order, so I can only infer the court decided not to award sanctions,” Becker said.
But the judge’s order also failed to mention an important consideration sought by the City. Despite conceding the the three zoning ordinances were voided, the City nevertheless sought to allow applications for developments made under those ordinances to proceed.
The City wrote in its proposed order: “Although Vertical Mixed Use II, Residential in Commercial, and Compatibility on Corridors are hereby declared void, any development with an application approved in reliance on Vertical Mixed Use II, Residential in Commercial, and Compatibility on Corridors may be build (sic) in accordance with the development standards set forth in those ordinances.”
That omission seems to leave applications filed by developers under the three voided zoning ordinances (listed below) in legal limbo.
Plaintiffs’ attorney fees pending
The order is “interlocutory” and not final and may not be appealed until a final order is issued incorporating plaintiffs attorney’s fees, costs, and expenses.
“The Court finds that an award of attorney’s fees, costs, and expenses is appropriate and the parties shall set the matter for a hearing at subsequent date,” he order states.
Attorney Becker has asked for “at least $150,000” in attorney’s fees. “These costs are a direct result of the City’s repeated refusal to abide by state law on zoning,” he stated in a press release.
He told the Bulldog that a hearing would not be necessary if he and the City can reach an agreement to present to the court.
The voided ordinances
The City’s version of the draft order sent to Judge Mangram acknowledged that in enacting three zoning ordinances without providing written notice to landowners it had violated Texas Local Government Code Chapter 211. And it agreed that the three ordinances are declared void. Those ordinances are:
Vertical Mixed Use II enacted June 9, 2022, (Ordinance No. 20220609-080),
Residential in Commercial enacted December 1, 2022 (Ordinance No. 20221201-055), and
Compatibility on Corridors enacted December 1, 2022 (Ordinance No. 20211201-056).
“After losing three times in court,” Becker’s press release states, “we hope, going forward, that the City finally learns from this embarrassing experience, does the right thing, and respects the interests and legal rights of Austin homeowners.”
Trust indicators: Ken Martin has been covering local government and politics in the Austin area since 1981. See more about Ken on the About page. Email [email protected].
Related documents:
City of Austin letter to Judge Mangram re: Objections to Plaintiffs’ proposed order, December 4, 2023 (17 pages)
Plaintiffs’ letter to Judge Mangram, in response to City of Austin’s letter of December 4, 2023 (2 pages)
District Judge Jessica Mangram’s Order in Acuna v. City of Austin, December 8, 2023 (5 pages)
Doug Becker’s press release concerning the Order, December 11, 2023 (1 page)
Related Bulldog coverage:
Plaintiffs in Acuna v. City of Austin seek sanctions and attorney’s fees, November 27, 2023. This story includes links to a dozen additional documents concerning the Acuna litigation.
Political shift on council undercuts land-use lawsuit, January 19, 2021
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