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They’re off and running for council

As in horse racing, the bugler has sounded, “Call to the Post” for the Austin City Council campaigns that are now officially underway.

A well known variation on the Golden Rule is that, “Whoever has the gold makes the rules.” That was definitely the case in the 2022 election of Mayor Kirk Watson and five council members.

Our detailed analysis of campaign finances for the 2022 election showed that in the contest to fill all six contested seats, the candidates who raised the most money won. Every. Single. Time.

Despite the 2024 election being 10 months off, the nine candidates who filed campaign finance reports raised a combined total of nearly $284,000 and have $271,000 cash on hand.

The campaign finance reports for all candidates are listed and linked at the bottom of this story.

Running for mayor

Kathie Tovo and Kirk Watson

Attorney Kirk Watson, age 66 (aka “Austin’s $2 million mayor”) won a two-year term in 2022, so now he’s has to do it all over again. He hasn’t actually announced his intentions to run for reelection but he does have a placeholder website published, where you can sign up for his email list.

Perhaps to his relief, his chief opponent in 2022, Celia Israel—the person he beat by a mere 940 votes out the 114,188 ballots cast—won’t be in his face for the 2024 election. She’s busy campaigning to be the next Travis County Tax Assessor-Collector.

So Watson has started his 2024 reelection campaign by doing nothing to raise money by the December 31st deadline for these reports. Then again, he did the same thing in his last run for mayor. He didn’t file a campaign finance report until July 15, 2022. By that time he had scared up a staggering $1 million—$997,465 to be exact.

Watson was first elected to be Austin’s mayor in 1997. He was reelected in 2000. He won six elections for the Texas Senate (2008-2018). In other words, he’s a political war horse and has no need to make a preemptive show of financial force this early.

After all, election day’s not till November 5th.

Tovo’s entry changes everything

But Watson’s reelection chances took on a whole new challenge January 18th when former Council Member Kathie Tovo announced she was running for mayor. Tovo, 54, was first elected in 2011 after jumping in on March 11th to oppose incumbent Council Member Randi Shade. Despite starting her campaign just nine weeks before the general election of May 14, 2011, Tovo netted 46 percent of the votes to Shade’s 33 percent. Tovo then went on to beat Shade in the runoff with 56 percent.

In that 2011 election, however, Tovo had a decided advantage: Shade and the entire City Council was being investigated by the Travis County attorney for criminal violations of the Texas Open Meetings Act. That investigation was triggered by the Bulldog’s investigative report, “Open Meetings, Closed Minds.” Three of the council members under investigation were up for reelection in 2011 but the other two had weak opponents, and gained reelection.

Tovo doesn’t have that advantage in facing Watson. While he’s skirted the law, as the Bulldog reported here and here, there’s no dark cloud of prosecution hanging over his head. If Tovo is to unseat Watson, she will have to win support by challenging his leadership and his policies while convincing voters she’s the best person to take Austin forward.

Because Tovo announced her candidacy in 2024 she did not have to file a campaign finance report for the period ending December 31, 2023. She can accept donations through her campaign website

Beating incumbent mayors hard, not impossible

But it’s been 36 years since any accomplished that feat. The following analysis reflects the results of five mayoral elections over the last four decades in which a sitting mayor faced a significant challenge. This analysis ignores the reelection campaigns of mayors who faced only token opposition.

The last two elections involved former female council members who decided to challenge a sitting mayor, both times resulting in particularly poor showings.

1985 Cooksey v. Mullen—Attorney Frank Cooksey bested incumbent Mayor Ron Mullen with 54 percent of the votes in a runoff.

1988 Cooke v. Cooksey—Former Council Member Lee Cooke beat incumbent Mayor Cooksey with 58 percent in a runoff.

 1994 Slusher v. ToddAustin Chronicle Politics Editor Daryl Slusher came practically out of nowhere yet scored within a whisker of unseating incumbent Mayor Bruce Todd. Slusher pulled 32 percent of the votes in the general election, forcing Todd with 46 percent into a runoff. Todd won the runoff by 1,359 votes.

2012 Shea v. Leffingwell—Former Council Member Brigid Shea got 37 percent of the votes in the general election—not enough to force incumbent Mayor Lee Leffingwell into a runoff, as he won with 52 percent.

2018 Morrison v. Adler—Former Council Member Laura Morrison’s bid to beat incumbent Mayor Steve Adler resulted in the worst possible outcome for the challenger. Adler whipped her with a whopping 40-point margin of 59 percent to 19 percent, without a runoff.

Should Tovo surmount the odds and unseat Watson, she will become Austin’s second-ever woman mayor. The first was Carole Keeton McClellan. She was first elected in 1977, then reelected in 1979 and 1981.

But even she (as Carole Keeton Strayhorn) was not able to make the comeback to win the mayor’s job again. After holding office as State Comptroller, she ran for mayor again in 2009 when there was no incumbent. She placed third in the general election with 21 percent of the votes, while Lee Leffingwell went on to win the runoff.

Running for District 2

Vanessa Fuentes

No one has appointed a campaign treasurer to declare they’re running against incumbent Vanessa Fuentes, 37.

Despite being outspent in 2020 by David Chincanchen in a four-candidate race to win the District 2 seat, Fuentes got more than 56 percent of the votes to win without a runoff.

She cast herself in that election campaign as a “policy expert” who had worked for State Representative Abel Herrera (D-Robstown) and later as a grassroots advocacy strategist for the American Heart Association. (The Bulldog’s profile on Fuentes and her 2020 opponents was published October 15, 2020.)

Given the political axiom that says everyone should run like they’re losing, Fuentes wasted no time in starting to raise money for her reelection bid.

She attracted individual donations totaling almost $46,000. She’s spent little so far and has upwards of $40,000 left on hand. She’s accepting donations through her reelection campaign website.

The $3,400 in loans Fuentes reported includes more than $2,800 carried over from her 2020 campaign.

Running for District 4

Jose “Chito” Vela

Incumbent Jose “Chito” Vela, 49 also has not yet drawn an opponent. And like her, he’s chasing down all the contributions he can get.

The Bulldog’s profiled Vela, an attorney practicing immigration and criminal defense law, during his 2020 campaign.

You can donate via his reelection website, where apparently lots of folks already have. He reported contributions of $63,000 already—the most so far for any candidate for 2024.

The $10,500 in loans that Vela reported represents a campaign debt carried over from his 2020 election campaign.

Running for District 6

Mackenzie Kelly and Krista Laine

Mackenzie Kelly, 37, is the only other incumbent running for reelection who has attracted an opponent, that being Krista Laine, 50.

Kelly reported raising nearly $42,000 by December 31st, while newcomer Laine tallied nearly $16,000.

Kelly is accepting campaign donations through a website. Laine also has a website to take donations.

Kelly is also the only Republican currently on the council dais. While council elections are technically nonpartisan, Austin’s election history has repeatedly demonstrated that voters care about the candidates’ party affiliations. Laine is a Democrat.

When Austin implemented elections from 10 geographic districts in 2014, three of the seats were captured by Republicans: Don Zimmerman in District 6, Ellen Troxclair in District 8, and Sheri Gallo in District 10.

In 2016 Zimmerman was knocked out of office by Flannigan. Gallo also lost to Alison Alter that year.

Laine was president of Access Education RRISD when in 2022 the organization endorsed all five candidates who won election or reelection to the Round Rock ISD’s Board of Trustees. One of the defeated candidates was none other than former Austin Council Member Don Zimmerman. He was part of the far-right slate of conservatives called Round Rock One Family, which wanted to ban books in school libraries and opposed accommodation of LGBT students. Zimmerman challenged board president Tiffanie Harrison, who snared 62 percent of the votes to win reelection.

The Bulldog detailed Kelly’s 2020 candidacy in the heat of her runoff campaign against incumbent Council Member Jimmy Flannigan.

Given the District 6 seat has swung from Republican to Democrat and back again with Kelly’s election, it will be interesting to see which way the political weather vane blows in 2024.

Kelly recently published an opinion piece in the Austin American-Statesman that candidly discussed her mental health challenges, which she attributed to domestic violence trauma and distressing incidents she witnessed as a volunteer firefighter. To assist her in coping with these issues she is now is accompanied by her small Havenese service dog, Frank. The City’s Human Resources Department has approved Kelly’s right under the Americans with Disabilities Act to be accompanied everywhere she is required to access as part of her council duties.

Running for District 7

Edwin Bautista, Pierre Nguyen, Adam Powell, and Mike Siegel

Four candidates have so far declared they want to succeed Leslie Pool on the council dais by appointing campaign treasurers.

Edwin Bautista, 26, reported raising just $240 through the end of last year. He works as a management assistant at Texas Housers, a nonprofit that helps low-income Texans to buy affordable homes in quality neighborhoods. He’s accepting donations on his campaign website.

Pierre Nguyen, 35, hasn’t yet filed a campaign finance report. He responded to the Bulldog’s text message by saying he’s currently training with the Coast Guard and “will be submitting my finance report in the next couple of days.” He’s the son of Vietnamese immigrants and works full-time as a firefighter with Travis County Emergency Services District 8. Donations to his campaign can be made on his campaign website.

Adam Powell, 29, raised slightly more than $12,000. He’s campaigning full-time. His most recent job was as chief of staff for a company that aims to transform the business of sports and entertainment by measuring the value of sponsorships. Before that he worked for three years at the Texas Education Agency as a “talent acquisition specialist.” He’s accepting campaign donations on his website.

Mike Siegel, 46, is an attorney who cofounded the nonprofit Ground Game Texas, whose mission is to build coalitions for progressive wins for Texas communities. He is adept at fundraising, given the skills developed as a two-time congressional candidate running against an entrenched Republican opponent. For his council campaign he has so far raised more than $57,000, second only to District 4 incumbent Vela. Donations may be made on Siegel’s campaign website.

The Bulldog reported on Bautista, Nguyen and Siegel last October 31st. (Powell will be profiled later.)

Running for District 10

Marc Duchen and Ashika Ganguly

The Bulldog profiled opponents Marc Duchen and Ashika Ganguly December 14th. He was born in South Africa and emigrated to the United States at age 4 and became a naturalized U.S. citizen at age 12. She is the daughter of Indian immigrants who came to this country for graduate studies and stayed. She was born in Austin.

Duchen, 45,  is a longtime neighborhood activist and himself an experienced campaign manager. He kickstarted his own run for council with a personal loan of $10,000 and raised more than $12,000 as of December 31st.

Ganguly, who turns 29 next month, is a former school teacher who worked last year as legislative director for State Representative John Bucy (D-Cedar Park). She launched her website early on and lined up a long list of endorsements. Through the end of last year she raked up $35,000 in donations.

Trust indicators: Ken Martin has been covering local government, politics, and elections in the Austin area since 1981. He wrote the Ron Mullen portion of Third Coast magazine’s March 1983 issue. That’s when incumbent Council Member Mullen ran for mayor against former Council Member Lowell Lebermann. Mullen won. The cover photo was so cleverly done that you couldn’t recognize that Lebermann was blind. See more on Ken on the About page. Email [email protected].

Related documents:

Campaign Finance Report for Edwin Bautista

Campaign Finance Report for Marc Duchen

Campaign Finance Report for Ashika Ganguly

Campaign Finance Report for Vanessa Fuentes

Campaign Finance Report for Mackenzie Kelly

Campaign Finance Report for Krista Laine

Campaign Finance Report for Adam Powell

Campaign Finance Report for Mike Siegel (Corrected)

Campaign Finance Report for Jose “Chito” Vela

Campaign Finance Report for Kirk Watson

Related Bulldog coverage:

District 10 council candidates jump in early, December 14, 2023

Siegel running for City Council District 7, October 31, 2023

Are tax subsidies for luxury development legal?

In a lawsuit filed last April plaintiffs sought a permanent injunction to prevent the City of Austin from diverting $354 million in future property taxes from being spent to subsidize a luxury development project. (Taxpayers Against Giveaways v. City of Austin, Cause No. D-1-GN-23-002238.) The Bulldog published an extensive report on that litigation the same day.

Under ordinances approved in December 2022, that $354 million would be allocated to Tax Increment Reinvestment Zone No. 19 (SCWF-TIRZ). The SCWF-TIRZ encompasses 118 acres of land located on the South Central Waterfront of Lady Bird Lake. It includes the former location of the Austin American-Statesman, for which a Planned Unit Development has been approved.

On December 22, 2023, both plaintiffs and the City of Austin filed motions for summary judgment in the case. Each side has asked the court to decide in its favor, as a matter of law, and without needing a trial.

Plaintiffs’ 48-page motion asks the court to grant a summary judgment to invalidate the creation of the SCWF-TIRZ and to enjoin the City from taking any action to expend public funds for it.

Defendant City of Austin’s 29-page motion for summary judgment states “None of the Plaintiffs’ claims has any merit.”

“The City Council made all findings required by the Texas Tax Code, and the findings were supported by the information before Council when it acted,” the motion states.

State law requires evidence for TIRZ

The “but for” test set forth in Tax Code Section 311.003(a) requires the City Council to determine “that development or redevelopment would not occur solely through private investment in the reasonably foreseeable future.”

The City Council, in passing the TIRZ Ordinances, based its approval on two documents:

(1) The South Central Waterfront Vision Framework Plan. The Plan approved in June 2016 states in the first sentence of its Executive Summary, “The South Central Waterfront is bound for change. In fact, change is rapidly underway.” (Emphasis added.)

(2) The analysis performed by Capitol Market Research, which is included in the Preliminary Project and Financing Plan amended by the City Council December 1, 2022.

The analysis presents an “absorption forecast” for three major property types: office, multifamily, and residential condominiums. The analysis predicts how much commercial real estate would be sold or leased over two decades.

That’s a feasibility study. It does not address whether public investments are necessary for development.

The Capitol Market Research analysis also includes Projected Taxable Values from 2021 to 2040 for properties within the 118-acre TIRZ. It showed that in January 2021 the City of Austin’s taxable property value was $824.9 million. In January 2022 the City’s taxable value exceeded $1 billion.

That’s an increase in taxable value of more than $188 million (nearly 19 percent) achieved in a single year without a TIRZ.

Rather than making a case for property taxes being essential for development to occur within the TIRZ, these two documents instead appear to undercut the City’s justification.

Mayor may have weakened TIRZ justification

Mayor Steve Adler at the December 1, 2022, City Council meeting, told council members that city “legal says that we’re allowed to use the TIRZ if the development that we want to have happen isn’t going to happen on its own. This is urban planning.”

On December 1, 2022, when the City Council was discussing the proposed amendment to the TIRZ Ordinances, then Mayor Steve Adler said, “There’s been a question about whether or not you can do a TIRZ in an area that would otherwise develop on its own. And our legal staff has told us, yes.

“No one is saying that this area wouldn’t develop if we didn’t do this… And legal says that we’re allowed to use the TIRZ if the development that we want to have happen isn’t going to happen on its own. This is urban planning.”

Alison Alter
Alison Alter

Later in that meeting, Council Member Alison Alter said, “I’ve had questions about whether we have—in the actual backup of what we’re passing—if we have the financial analysis to establish the ‘but for.’ ”

She asked for an explanation of where the City had documented having met that requirement.

Ed Van Eenoo

Ed Van Eenoo, the City’s chief financial officer, replied: “The market analysis that we had done is the basis for the ‘but for’ analysis…the CMR (Capitol Market Research) analysis is that ‘but for’… the public investment we are projecting more than $3 billion of private investment occurring would not happen. But for the public investment that would not occur.”

Despite possibly overstepping its legal authority, the City Council amended the SCWF-TIRZ Ordinances and obligated 46 percent of the property taxes attributable to increased growth of the tax base within the TIRZ boundaries.

The vote to approve was 7-3-1. Council Members Alison Alter, Kathie Tovo, and Mackenzie Kelly were opposed. Council Member Ann Kitchen abstained.

Lobbyist said no TIRZ, no project

Lawyer-lobbyist Richard Suttle of Austin law firm Armbrust & Brown represented developer Endeavor Real Estate Group in gaining City Council approval of the SCWF-TIRZ.

When at one point it looked like the Council might not approve the TIRZ, Suttle issued an ultimatum: “All the work that we’ve done so far is out the window. Because we’ve said over and over we have to have a viable project. Our understanding was the TIRZ was going to be approved and the funding was going to be appropriated to the things the TIRZ said they were going to do. That’s the only way our project works.”

Richard Suttle

“I’ll tell you what: we won’t build the plan if there’s no TIRZ. It just doesn’t work,” Suttle said on another occasion.

Other developers criticize TIRZ

Two veteran Austin real estate developers told the Bulldog that devoting public funds to the TIRZ is unnecessary.

Brian Rodgers

Brian Rodgers, a longtime civic activist in addition to being a real estate investor, is blunt: “The idea that if the City doesn’t subsidize development, they won’t build it, is bullshit.”

Ed Wendler Jr. said, “The State law says a city can’t create a TIRZ unless the area is blighted or that without the TIRZ development is unlikely. But I don’t think there’s an Austin resident, judge, Martian, or proverbial blind man that believes the corner of South Congress Avenue and Riverside Drive won’t develop.

Ed Wender Jr.

“That’s the center of the TIRZ. It’s located in one of the hottest real estate markets in the nation and in one of the hottest areas of that market.

“In this case there is no doubt that residents gave up tax revenue they would certainly get without a TIRZ.”

Wendler added, “The huge increase in value shown in the (Capitol Market Research) report is due to the massive increase in zoning that the City is granting. It is a very, very generous gift of tens of millions of dollars.

“That increase in value has nothing to do with the TIRZ. The creation of the TIRZ is a gift on top of that gift. The increase in tax revenue is attributable to the increase in zoning: bigger buildings, more taxable value, more tax dollars.”

Rodgers agreed, saying, “Increased zoning entitlements provide the real value. That can change at any Thursday’s council meeting. Every additional story of building height they give developers is handing them money.”

What the TIRZ costs taxpayers

The Capitol Market Research analysis states the 118-acre TIRZ had a 2021 taxable value of $824.9 million. The analysis projects the taxable value would grow to $8 billion by 2040.

Those values are based on the assumption that the South Central Waterfront Vision Framework Plan “is implemented and the City of Austin contributes funds for infrastructure that will support higher density development.”

That infrastructure is estimated to cost $354 million over 20 years, per Exhibit D of the Preliminary Project and Financing Plan. Under the TIRZ Ordinances, the cost of public improvements will be paid for by taking 46 percent of the increase in tax revenue derived from the development.

That $354 million—instead of going into the City’s general fund to help pay for police, fire, EMS, libraries, and parks, for example—would be used to pay for infrastructure to enhance the luxury development of 118 acres on the south shore of Lady Bird Lake. It would pay for roads and drainage, affordable housing, streetscapes, parks, trails, plazas, and utilities. These are costs that downtown developers, for example, would themselves be expected to pay.

The TIRZ Ordinances affect only the collection and use of city property taxes. The TIRZ will not reduce the ability of other taxing jurisdictions to collect their usual taxes.

No money has been spent

The Preliminary Project and Financing Plan, amended December 1, 2022, states that the SCWF-TIRZ will continue to exist until all debt issued by the City has been fully satisfied or December 31, 2041, unless otherwise terminated.

The Plan recommends achieving the improvements in tiers tied to property tax projections. Only Tier One projects will be eligible for funding upon creation of the Zone. Implementation of Tiers Two and Three projects are contingent upon performance of the Zone.

Tier One roadway and drainage projects would cost an estimated $83.4 million, according to the plan. Affordable housing projects are also included in Tier One, estimated to cost $69.5 million.

Kimberly Moore

Kimberly Moore, a senior public information specialist with the City’s Financial Services Department, said in an email that $742,077 in city taxes are expected to be collected on the TIRZ properties in 2023.

Those funds are to be placed in the South Central Waterfront Tax Increment Financing Fund and used for various capital projects. Although these improvements will benefit development of the TIRZ properties, those improvements will be owned and managed by the City of Austin.

The City’s Financial Services Department will lead and partner with other affected departments to develop the Final Project Plan, Moore said.

No funds can be disbursed for use until a final Project and Financing Plan is developed and approved, Moore said. But that plan can’t be finalized until a “regulating plan” is completed.

Erica Leak

Erica Leak, development planning officer in the City’s Planning Department, said the regulating plan, sometimes called an overlay or a density bonus plan, will establish development standards for the area within the TIRZ.

The regulating plan will be based on the 2016 Vision Framework Plan and designed to achieve its implementation, she said. That would include a required street network and associated streetscapes. A density bonus might permit additional square footage or building height proportional to the community benefits provided by developers. Examples of community benefits are open space or affordable housing.

Leak said the hope is that the council would adopt the regulating plan no later than this May.

Trust indicators: Ken Martin has been doing investigative reporting in the three-county Austin metro area since 1981. Email [email protected].

Related documents:

City of Austin Ordinance No. 20221201-010, amending the ordinance that established the Tax Increment Reinvestment Zone No. 19, December 1, 2022 (3 pages)

City of Austin Ordinance 202215201-054, amending the ordinance that established the Tax Increment Reinvestment Zone No. 19, December 1, 2022 (3 pages)

Defendants City of Austin motion for traditional and no-evidence summary judgment, December 22, 2022 (29 pages)

Exhibit D to the Preliminary Project and Financing Plan listing the public improvements and cost for TIRZ projects (1 page)

Plaintiff’s original petition for injunctive relief, Taxpayers Against Giveaways, et al, v City of Austin Mayor Kirk Watson et al, (Cause No. D-1-GN-23-002238) April 24, 2023 (24 pages)

Plaintiffs’ Motion for final summary judgment, December 22, 2022 (48 pages)

Preliminary Project and Financing Plan for South-Central Waterfront Tax Increment Reinvestment Zone No. 19, amended December 1, 2022 (219 pages, which includes the Capitol Market Research TIRZ Analysis on pages 131-219)

South Central Waterfront Vision Framework Plan, June 16, 2016 (114 pages)

Related Bulldog coverage:

Lawsuit seeks to halt tax dollars for luxury development, April 24, 2023

Lame duck council set to vote on 20-year sweetheart tax deal for developer, November 28, 2022

Environmentalists assail plan for lakeside high rises, October 4, 2022

Council revives plan to use ‘blight’ law to subsidize luxury high rises, July 28, 2022

Luxury subsidy deal stalls at council, February 3, 2022

Luxury real estate to get special tax status under ‘blight’ statute, December 21, 2024

District 10 Council candidates jump in early

2

With 2024 being a presidential election year—maybe a rerun of the 2020 election between Joe Biden and Donald Trump—we should be expecting record-breaking turnout in Austin voting.

Add to that, for the first time in Austin’s history, the mayor’s race will be on the same ballot as the presidential contest.

Candidates running for the five council seats on that November 2024 ballot will need to work extra hard to get the attention and support of local voters who will be constantly bombarded on all media platforms by deep-pocketed candidates seeking higher office.

As of January 31, 2023, there were 70,666 qualified voters in District 10, according to information supplied by a city spokesperson. In the general election of November 3, 2020, when the District 10 council seat was last contested, seven candidates drew a combined total of 49,372 votes. For the runoff of December 15, 2020, 24,304 votes were recorded, with incumbent Alison Alter defeating Jennifer Virden with 51.35 percent.

A Council District Demographic Profile published by the Planning Department indicates District 10’s population in the 2020 census, updated in 2021 by the American Community Survey, was 98,455. The median age was 38.8.

Fourteen percent were immigrants, the same percentage as for age 65 and older. Nineteen percent were under the age of 18.

They lived in 45,979 households with a median income of $102,303. That makes District 10 the second most affluent, behind District 8’s median household income of $118,336.

Ninety-nine percent had high school diplomas and 76 percent had a bachelor’s degree or higher education.

Early District 10 entrants

Marc Duchen (no middle name) is 45 years of age and has a long history of involvement in the issues that face the Austin City Council.

Asked why he’s running for City Council, Duchen said the council will have a “big hole in District 10” when it loses Alison Alter’s experience.

For nine years he’s been on the Stillhouse Hollow Condominium Owners Association, which consists of 180 units surrounded on three sides by greenbelts. He is currently its president and helps oversee an annual budget he says is $750,000.

He is a board member of Community Not Commodity, a group in the forefront of fights against the City Council’s plan to eliminate single-family neighborhoods. The group organized against CodeNEXT in 2017 and recently provided a system for filing protests to protect homes and neighborhoods. That effort resulted in some 16,000 protests being filed against the HOME initiative, which the council nevertheless approved 9-2 December 7th.

Duchen is also vice president of programming for the Austin Neighborhoods Council and for five years he has been a member of ANC’s executive committee. “We need a smart, pragmatic person to ask questions and be a balanced advocate for neighborhoods and capable of understanding city’s finances, where we’re spending, and what we can afford,” he said.

“The public has been largely shut out of policies and we’re worse off for it. We need to bring in someone that favors an inclusive process and has the courage to acknowledge when things aren’t working. Someone with creativity to find new and data-informed solutions.

He was encouraged by the Zilker Rewilding outcome that prevented Zilker Park from being turned into a commercial venue. “I felt like that really demonstrated that we can achieve a broad-based coalition to push back against the council’s excesses. For me that’s a potential roadmap going forward.”

Duchen has been involved in politics for decades. He does business in that arena as HD Campaigns LLC. He formed the company in August 2009 with Herb Holland, according to records maintained by the Texas Secretary of State. The latest Public Information Report for the firm filed May 13, 2023, lists him as principal and director.

He first voted in a Travis County election in 2007 and has voted in only Democratic primaries.

Ashika Lekha Ganguly is 28 and sees things from a different perspective. She is a former Austin ISD school teacher.

Ashika Ganguly in a Matthews Elementary School classroom.

Asked why she’s running for council, Ganguly said, “Sometimes I think every experience I’ve had has prepared me for this moment. I was born and raised in West Austin…I really saw as a teacher how everything in the city shapes our families stability, happiness and success.

“I want to take that experience I saw as a teacher and add to it my experience with policy making at the state on property taxes, voting….”

“I feel strongly about bringing a fresh face to strong leadership at the local level. (I want) to represent my community, the families I taught, in a way that stands up to state preemption and allows us to fight for equitable policies at the local level.”

Since January 1st she has been legislative director for State Representative John Bucy (D-Cedar Park).

It should be noted that although she is campaigning under her maiden name, both her state personnel file and Travis County voting record are still under her former married name, Parker.

She married Ryan Lee Parker in December 2018 and was divorced in November 30, 2022, a month before she began work on Bucy’s staff. Her divorce decree permitted a name change. She told the Bulldog, “I’m planning to change back to my maiden name in public identify. That’s the name I grew up with, was born and raised with. It also ties me to my heritage. I have not quite gotten around to it.”

She first voted in Travis County in 2014 and has voted in only Democratic primaries.

Key issues for these candidates

Ganguly said if elected she will focus on “smart spending,” by developing preventive and proactive policies that would spend money upfront to counter “reactionary policies in spending government money.”

Environmentalism and sustainability and her second priority issues. She notes that the Edwards Aquifer is “in dire straits right now” and lakes are at “the lowest levels in years.”

“A big issue for my district is wildfire prevention and protection. There’s a lot of open land. Anything from robust first response and development practices that mitigate wildfire, I’m putting my interest there.”

A ”thriving community” is her third priority, a community where you can live, work, play and be mobile in your own community. She advocates for robust urban transit, trails, sidewalks, and development that contributes to vibrancy of the community.

She said the bulldozing of the old Randall’s supermarket at Lake Austin Boulevard and Exposition and replacing it with a “new, fancy-schmancy HEB” was transformative for her neighborhood.

Duchen starts with the bigger picture, saying, “Austin faces significant challenges on most city fronts including land use, mobility, affordability, and public safety. These challenges have all been compounded by over a decade of hypergrowth, and further complicated by a series of unsuccessful or misaligned council policies.

“But it’s not just Austin.  My two decades of experience in politics and engagement suggest that our entire American Democratic system of government is in trouble.  Austin’s challenges may as well be ‘Exhibit A.’ ”

On the issue of mobility, Duchen cites the failure in executing plans for Project Connect, whose scope has been reduced and its cost increased. “The central challenge right now is that we have already earmarked a generation’s worth of transit dollars for a project that has both been downsized and continues to carry enormous risks—including whether it can actually solve our transit needs.” Instead, he advocates “Prioritizing busing including dedicated busing lanes, flyovers, even tunnels, that could be part of a multi-modal system that includes more bike lanes and other modes of transit that is both flexible to the public’s needs and that people would actually use.”

Duchen points to the shortage of police officers, low morale, and lengthy response times. “We need to be thoughtful, going forward, about how we invest in and support public safety and our police, including our cadet classes, and how communities and residents can partner with them to make their communities safe and reduce emergency response times.”

“We need to re-establish the connection between communities and their APD representatives.  We can both hold APD accountable and support public safety initiatives. They aren’t mutually exclusive.”

Regarding homeless housing, Duchen said, “There are nonprofits in this space that have decades of experience working with the chronically homeless, such as New Hope Housing in Houston.  They raise money privately and fund operations through housing tax credits. Most importantly, they have a wealth of experience building and managing facilities and working with neighbors in a way that the City of Austin and city providers do not. We can partner with these groups, incentivize them using city land or other benefits, and over time scale up a program that supports both homeless housing and low-cost housing.”

Both connected to the immigrant experience

Ganguly was born in Austin and is the daughter of immigrants who came from India for graduate studies and stayed. She said she considers herself an Asian American Pacific Islander.

Ashika Ganguly with her dog Rani

She is single with no children and lives with her mixed-breed dog Rani in a condo near the Lions Municipal Golf Course (and that fancy-schmancy HEB). The dwelling is owned by her parents, who reside just outside the District 10 border in the city’s two-mile extraterritorial jurisdiction.

She attended Eanes ISD campuses at Barton Creek Elementary, West Ridge Middle School, and Westlake High School before enrolling at UT Austin in the fall 2013 semester. She graduated with a bachelor’s degree in applied learning and development December 17, 2016, and started work two days later as a school teacher at Blazier Elementary, she said. Ganguly then transferred to Matthews Elementary in Clarksville for her last four years of teaching, ending in May 2021.

Duchen was born in Johannesburg, South Africa. His family emigrated to the United States when he was 4. He became a naturalized U.S. citizen at about age 12, he said. He attended public schools in Houston.

Marc Duchen with his dog Crumpet

He is single with no children and lives with his cocker spaniel, Crumpet, in a condo owned by his father, who lives in Houston.

Duchen came to Austin in 1996 to enroll at the University of Texas, the year after Ganguly was born. He graduated with a bachelor’s degree in government in 2001. In 2009, he said, he earned a master’s in business administration from the Acton School of Business in Austin.

He says he ran political campaigns across Texas in his early career and ran Betty Dunkerley’s reelection campaign in 2005. (She defeated four challengers without a runoff.) After spending the next year in Corpus Christi running a successful state house race, he returned to Austin to work for the Texas Progress Council and served as research director for the Texas Democratic Party, he said.

After graduate school he did more political consulting, he said, before transitioning to work in a variety of technology projects.

Far different campaign styles

The City Council members who won open seats in the 2022 election spent from around $150,000 to a bit more than $200,000, according to the Bulldog’s analysis. How much will these two spend?

Duchen said “From the git-go I need at least $100,000. To get to $150,000 to $200,000 by next November seems doable. There’s no way I would have jumped in if I didn’t think so.”

“The takeaway (from the 2022 election) was not money, but who did what…I’m going to have to go work really hard and knock on doors myself…I plan to knock on 50,000 doors over the next 11 months, which would mean that some people will get more than one knock.”

Duchen said he will not be aided by the tool that Democrats often use as a guide for which doors to knock, the NGP VAN (Voter Access Network). “I feel like its outdated and not the best data. I have my own database,” he said, “that’s part of what I do professionally. But I’ll probably enlist Leland’s targeting advice,” he added, referring to Leland Beatty. “Leland is brilliant and probably knows more about campaign data and specifically Austin data than anyone I know.”

Duchen has a “coming soon” placeholder for a campaign website, marcforaustin.com, but no campaign manager and no plans to hire one till next summer. “The logic is to keep overhead as low as possible,” he told the Bulldog.

Duchen initially said in an interview that he would be using Mark Nathan of the City Lights Group as a campaign consultant.But on December 18th he emailed the Bulldog to say that Nathan “has another commitment and as a result will not be able to formally help my campaign next year.”

Ganguly posted a video to Facebook November 18th saying she had raised $15,000 in the first week of her campaign. Later she held another fundraiser at her parent’s home. “I’m thinking in terms of increments,” she told the Bulldog. “I plan to raise $30,000 to $40,000 by January and will have good momentum, and will be close to $200,000 by end of it.”

She is active on X (formerly Twitter) and Instagram. And her campaign website (dominated in bright orange reminiscent of UT’s burnt orange) provides a long list of supporters, both elected officials, community leaders, and others.

“I made the decision to run at the beginning of June, talking to community leaders, friends, and neighbors every day to get the campaign off the ground. The response has been overwhelming and positive. I’m so grateful to have people work with me for a better Austin.”

Ganguly said she will “likely use the VAN” to guide her efforts in knocking on doors. “I’m still looking through the voter data, especially after redistricting. I want to be intentional with our outreach and meeting voters who are new to District 10. But we plan to engage voters in every precinct throughout the campaign in order to effectively represent every precinct on the dais.”

Ganguly’s campaign manager is Kyle Burke, who, like her, is an aide for State Representative Bucy. She has no campaign consultant but told the Bulldog she has “some folks helping me” and has “sat down with a number of people involved in Austin politics to pick brains and think about a path to victory.”

She said that Burke has worked on campaigns including Mike Collier for lieutenant governor in 2018, Jay Kleburg for land commissioner in 2022, and for Vanessa Fuentes in her 2020 election to win a seat on the City Council. Fuentes’s campaign finance report posted in January 2021 shows that she paid Burke $500 for contract labor in that entire campaign.

Differences in personal health

Ganguly said when she was a teacher, “I don’t think I ever had a free moment.” Since then she’s found time for a number of activities, including involvement in Indian-American community events. She said she volunteers with Keep Austin Beautiful and for Shoal Creek cleanups, and enjoys happy hours and social activities, including exercising with two groups.

She said she works out with Trinity Training Company, which offers a variety of experiences. She also trains with Relay, which on its Instragram page appears to have a large member base that engages in a variety of strenuous physical exercises.

Cruise through her Instagram photos and you’ll quickly see that Ganguly is super fit.

Duchen has had a far different life experience. He is a cancer survivor. “I’m five years cancer-free, which is the point that the odds of a recurrence plummet.”

In this council campaign he is following in the footsteps of many public officials who have been open about chronic health challenges, among them New York Mayor Eric Adams, who has diabetes; Pennsylvania Senator John Fetterman, who suffered from depression following a stroke; and closer to home, Council Member Natasha Harper-Madison, who recently returned from a couple of months off for a mental health break.

“This year has been extremely challenging for me,” Harper-Madison told the Austin American-Statesman last month. “I live with depression and anxiety. Thankfully these issues can be treated with focused care.”

Duchen said, “Far more so than cancer, my life changed as a high school freshman when I woke up one day and could not move—or barely breathe.  It took nearly four years to receive a diagnosis: an unusual and little-known auto-immune illness called ‘Ankylosing Spondylitis.’ AS is a form of rheumatoid arthritis and is degenerative. If left untreated, it can cause spinal fusion on top of chronic pain and fatigue. I’m deeply grateful to western medicine which has allowed me to work, start a business, and contribute to my community.

“I have overcome many obstacles to get to where I am and my philosophy has always been to do what I can, with what I have, while I am able.  I am inspired to run for City Council because I have a chronic illness—not in spite of it.”

“The chronic illness never goes away and requires daily attention: I take medication at 5am and 5pm every day so that I can do things that most of us do without thinking, like walk or breathe. On the other hand, I have some insight into how some 50 million other Americans with chronic illnesses live, insight into the opioid epidemic, and insight into healthcare access issues that others might not necessarily have.

“I think there is lived experience and perspective I could bring to Council that could be valuable in dealing with certain issues or understanding and serving a diverse community.”

What Duchen’s supporters say

Duchen has upwards of 50 supporters to be listed on his campaign website, which has not yet been launched, but adds that he’s done a lot of work for Democrats over the years and is confident “folks will come out.” He’s counting on strong grassroots support.

Linda Bailey

Among those on board are his campaign treasurer, Linda Bailey, who said she’s known him for six or seven years. “I know him to be balanced, professional, and data-driven.

“He’s not a reactionary and that’s important to me. I like his policy. I’ve seen him have good reasons to improve the HOME initiative. He works with coalitions very well.

“We need an adult in the room on city council,” Bailey said.

Cecilia Burke

Cecilia Burke has also known Duchen for quite a few years, including when they were fighting a planned unit development in the area.

“Marc is thoughtful and deliberative,” Burke said. “We fight over land issues all the time but there’s more than that. The city has grown fast. The roads, bus system, and transportation are not good.

“I don’t think of Marc as a NIMBY. He’s smart, will do his research and make good decisions for the people of Austin,” Burke said.

Jennifer Mushtaler

Jennifer Mushtaler was herself a City Council candidate. She ran against incumbent District 6 Council Member Jimmy Flannigan in 2020, placing third in the general election, while Mackenzie Kelly went on to beat Flannigan in the runoff. She is currently serving her second term on the Planning Commission as Kelly’s appointee.

She said she got to know Duchen when she was running for council. “I really like him. He’s very thoughtful. He asks the tough questions and digs in and gives matters careful thought. He doesn’t react emotionally, he reacts thoughtfully.”

After redistricting resulting from the 2020 census, Mushtaler is now in District 10 herself. She said she admires incumbent Council Member Alison Alter and says finding the right person to succeed her is important. Mushtaler opposed the HOME initiative the council approved December 7th, with Council Members Kelly and Alison Alter opposed.

“I admire Alison’s service. She asked hard questions. That’s an important element on the dais that needs to be there. I think Marc will ask hard questions. That’s good for us, the district, and the city.”

She added, “Marc works very well with both sides of the aisle. He’s aligned with the Democratic Party but reaches across. District 10 is very purple and that should be very appealing.”

Heidi Gibbons

Heidi Gibbons is also a strong Duchen supporter. “I want someone who has a stake in this community, not someone paid off by developers,” she said. “I was with the group that interviewed Alison Alter when she was first asked to run for council. Because of her involvement with the Parks Board I knew she had the smarts and the passion.

“I’m looking for someone with smarts and a passion for Austin. I want someone who has worked in the city and can get things done.”

What Ganguly’s supporters say

John Bucy

State Representative Bucy, Ganguly’s boss at the State Capitol, was enthusiastic about the work she did during 2023’s regular legislative session and four—count ‘em four—special sessions called by Governor Greg Abbott.

He said that he serves on the Higher Education Committee and Ganguly played a “vital role to help me and in constituent services and worked on many education bills. We had a huge win staving off vouchers.”

“Ashika has been incredibly important,” he said, noting that she “has real-world classroom experience. She was born and raised in that district. She cares about kids and their futures.”

Manny Gonzalez

Manuel “Manny” Gonzalez, PhD, is regional director of the nonprofit Western Governors University. He also serves as secretary for the Austin Community College’s Board of Trustees.

He told the Bulldog he worked closely with both Bucy and Ganguly on developing policies to provide greater access to higher education, including opportunities for financial incentives for adult learners. “She was excellent collaborator,” he said.

“Ashika asks questions and solves problems with ideas to address these issues. I highly value her inquisitive and thoughtful approach. I have to give her credit for passionate, creative public service.

“Austin needa a lot of voices at the table to be sure it stays a special city,” Gonzalez said. “As a former school teacher, she has focused on education but it’s not the only thing. She has talked about housing affordability issues and how to ensure everybody has lots of opportunity to find success.”

Andrea Chevalier

Andera Chevalier is director of governmental relations for an organization involved in special education. She was careful to say that she is expressing her personal opinions and she does not speak for the organization.

Concerning Ganguly, Chevalier said, “She really surprised me in the legislative session when I saw her interacting with stakeholders, the way she listens really deeply and takes all viewpoints into account.

“She’s really strong. When she believes in something she really speaks out and fights for it. She comes across as being more reserved or quiet because she’s listening but when she speaks out it’s because she really believes in what she’s fighting for, which is helping people.

“I really like her because she’s a former teacher and I know she’s been exposed to different family situations and knows there’s lot of diversity and how that impacts families and that’s really important.”

Ganguly provided the names of two other people who are listed as supporters, former State Representative Eddie Rodriguez and Leander ISD Trustee Anna Smith. Neither returned multiple calls for comment.

It’s a long way till November 5, 2024

The Bulldog tracks when candidates appoint campaign treasurers. That’s when they can start soliciting and accepting campaign donations. It’s also when we begin gathering information that will guide our reporting about the candidates.

The Austin City Clerk’s webpage states the 2024 Candidate Package will be released May 2, 2024.

The first day to file for a place on the ballot is July 22, 2024, and the deadline is August 19th.

The Bulldog will continue working through election year 2024 and doing our best to provide deep-dive coverage of the candidates and their campaigns.

This article was updated 9:48am December 15, 2023, to correct a person’s name: It’s Leland Beatty (not Bailey).

This article was updated 2:39pm December 19, 2023, to clarify that Mark Nathan will not be formally helping Duchen’s campaign.

This article was updated 10:02am December 21, 2023, to remove the remark about Ganguly’s appearance.

Trust indicators: Ken Martin’s first big political story about an Austin election was published by (the now defunct) Third Coast magazine in January 1982. The story covered the petition campaign led by the anti-gay group Austin Citizens for Decency that put an ordinance on the ballot of January 16, 1982: “Providing that it shall not be unlawful to deny housing on the basis of sexual orientation.” That election drew 57,236 voters to the polls. Sixty-three percent voted to defeat the ordinance.

If you appreciate getting this kind of in-depth coverage of candicates, you can show your support for this work by making a tax-deductible donation. Because the Bulldog is now participating in the national NewsMatch fundraising campaign, all donations will be matched dollar-for-dollar through the end of this month.

Related documents:

Ashika Ganguly degrees and dates of attendance at UT Austin (1 page)

Ashika Ganguly (Ashika Parker) personnel file for her employment by State Representative John Bucy (19 pages)

Ashika Ganguly (Ashika Lekha Parker) Voter Lookup record, showing she registered to vote April 14, 2013 (2 pages)

Ashika Ganguly records of her Wedding of December 28, 2018 and Divorce of November 30, 2022 (3 pages)

Demographic Profile for City Council District 10 (3 pages)

LinkedIn page for Kyle Burke, policy and operations specialist for State Representative John Bucy (1 page)

Mark Duchen campaign treasurer appointment, November 13, 2013 (2 pages)

Mark Duchen degree and dates of attendance at UT Austin (1 page)

Marc Duchen Secretary of State records for HD Campaigns LLC formation and latest Public Information Report, May 13, 2023

Marc Duchen Voter Lookup record, showing he registered to vote September 23, 2007 (2 pages)

Travis Central Appraisal District records for the condo residence of Ashika Ganguly (2 pages)

Travis Central Appraisal District records for the condo residence of Marc Duchen (2 pages)

Travis County Tax Office records for the condo residence of Ashika Ganguly (1 page)

Travis County Tax Office records for the condo residence of Marc Duchen (1 page)

Related Bulldog coverage:

Siegel running for City Council District 7, October 31, 2023

Latest zoning changes may trigger new litigation

Jessica Magnum

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.

Anne Morgan

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

Doug Becker

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

Plaintiffs in Acuña v. City of Austin seek sanctions and attorney’s fees

Jessica Magnum

The plaintiffs won. All that’s left is a final order. To achieve that end, the trial court presided over by District Judge Jessica Mangrum requested that counsel for plaintiffs in Acuña v City of Austin (D-1-GN-19-008617) “draft an order memorializing these rulings and send same to opposing counsel for review as to form.” The draft order was due for the court’s review November 17th.

Doug Becker

Plaintiff’s counsel, Austin-based attorney Douglas “Doug” Becker of Gray & Becker, followed the court’s instruction and provided a draft order to the City Attorney’s Office. Becker said he submitted his proposed order November 17th and submitted a revised draft November 20th.

Becker’s draft order, in keeping with the decisions of the trial and appellate courts, voids three zoning ordinances for not following statutory requirements to provide landowners with written notice and hindering their right to protest.

Because the three ordinances were enacted despite a final judgment that required written notice to landowners, the draft order proposes the City be sanctioned $250 for each day the voided ordinances have been in effect.

As of November 20th these sanctions totaled $309,250, according to Becker’s draft order.

In addition, Becker expects to ask the court at a later date for attorney’s fees in the “ball park” amount of “$150,000, with more in the event the city appeals.”

If those sanctions and attorney’s fees were approved by the court, then the City, i.e., taxpayers, would have to pay nearly $460,000.

City seeks to deny sanctions, allow development

The trial court did not ask the defendant City of Austin for a draft order but provided the usual opportunity for review of the plaintiffs’ draft before the court issues its final order.

But, instead of agreeing to Becker’s draft, or negotiating changes, the City proposed its own order.

The City’s version acknowledges that in enacting three zoning ordinances without providing written notice to landowners it had violated Texas Local Government Code Chapter 211.  And it agrees 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).

Despite conceding the ordinances are void the City nevertheless seeks to allow applications for developments made under those ordinances to proceed:

“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.”

The number of development applications that might be affected is unknown.

There is a rationale for allowing developments to proceed as if these ordinances had not been voided. Significant sums may have been expended in reliance upon those ordinances. Cancelling approvals might trigger new litigation from developers. And the City may seek to approve the ordinances again—presumably with proper written notice to affected landowners.

The City also seeks to have the court deny the plaintiffs’ request “to hold Defendants in civil contempt and for sanctions and attorneys fees.” Which is remarkable in that Becker’s draft order does not request the City be held in contempt.

Becker requests resolution by December 1st

On November 22nd Becker wrote to the court, “I recognize that Ms. (Hannah) Vahl, (an assistant city attorney) having received a settlement proposal from me, is ethically bound to present it to her clients. For several years I worked at the Texas Attorney General’s office and am aware that the process takes time. Yet, given the history of this litigation, Plaintiffs have little hope that our offer will be accepted. We are not enthusiastic about further delays in litigation that has been continuing for years now.

“Ms. Vahl requests that the Court ‘not enter an order before 12/1.’ I suggest that if the parties haven’t informed the Court that settlement has been achieved by 12:00 noon on Friday, December 1, it would be appropriate for the Court to enter the Order that afternoon, or as soon thereafter as practicable.

Litigation started in 2019

The legal battle started four years ago. That’s when the Austin City Council had voted on two readings to adopt a comprehensive revised Land Development Code that sought to rezone property throughout the entire city. (Three readings are required for final passage.) The two readings were completed without providing notice to affected landowners. And without allowing protests by those landowners.

In December 2019, landowners sued (Acuña v. City of Austin). The lawsuit alleged the City’s failure to provide written notice of the comprehensive zoning ordinance and to recognize property owners’ protest rights violated Chapter 211 of the Texas Local Government Code..

In March 2020, the district court agreed and called a halt before third and final vote to approve these sweeping changes in zoning. The court’s final judgment voided the votes on the first two readings. In addition the court issued a permanent injunction to require the City before enacting future zoning ordinances to send written notice to affected landowners and recognize protest rights.

The City appealed the district court’s ruling in April 2020. Plaintiffs filed an unopposed motion to keep the final judgment in effect pending appeal. In other words the City Council was prohibited from enacting new zoning ordinances unless it provided written notification to affected landowners and accommodated their right to protest the zoning changes.

Two years after the appeal was filed, the 14th Court of Appeals on March 17, 2022 affirmed the trial court’s judgment.

The appeals court decision (City of Austin v. Acuña, Case No. 14-20-00356-CV) states, “We conclude that a comprehensive revision ‘changes’ existing zoning ordinances, and thus, the statute’s written notice and protest provisions apply….”

Just 12 weeks after the appeals court decision was handed down the City Council was scheduled to consider and vote on a zoning ordinance concerning Vertical Mixed Use (VMU)—again without providing written notice to affected landowners.

City warned of consequences

Becker warned the City Council the day before it was scheduled to vote on the VMU ordinance there would be consequences. Becker’s letter of June 8, 2022, stated: “I have been advised that the Council is considering amendments to Austin’s land development code regulations governing Vertical Mixed-Use (VMU) properties. (Ordinance No. 20220609-080).

“I also understand that while Council Member Ann Kitchen has proposed implementing those changes through existing rezoning processes that would provide affected property owners state-mandated written notice and an opportunity to support or protest, others have suggested that these changes and other amendment such as compatibility reductions be implemented without these protections.

“With those understandings, I write to remind you that changes to the land use regulations on VMU properties without providing written notice and protest rights, as required by state law and the district court as affirmed by Acuña et al. v. City of Austin, subjects the city to further costly litigation. At that time, the City will be asked to explain why it again—this time within weeks of the Court of Appeals mandate—violated state law. As you know from the Acuña case, the City’s failure to follow the mandatory requirements of Chapter 211 renders its action void.”

The City Council ignored Becker’s warning and passed the VMU ordinance June 9, 2022. The ordinance was approved on a vote of 10-1, with Council Member Kathie Tovo voting nay, according to the meeting minutes.

Then on December 1, 2022, the City Council approved two additional zoning ordinances—one allowing residential dwellings in commercial zoning districts, the other revising compatibility standards along corridors—both without providing written notice to affected landowners. (Ordinance Nos. 20221201-055 and 20221201-056).Ordinance 20221201-055 passed on a vote of 10-1 with Council Member Mackenzie Kelly voting nay. Ordinance 20221201-056 passed on a vote of 9-0 with Council Member Kathie Tovo abstaining and Council Member Vanessa Fuentes off the dais, according to the meeting minutes.

Consequences come due

Although the City of Austin is finally getting its legal comeuppance in this litigation, one must wonder why it violated an explicit injunction and insisted on ramming through zoning ordinances while ignoring state law that requires written notices to affected landowners.

Fred Lewis

Attorney Fred Lewis, who is one of the 19 plaintiffs in the Acuña case, said the City’s actions are driven by “arrogance.”

“Because they didn’t want the public to participate.”

“By not giving people notice and misleading them about protest rights…how much trust has the city lost? The reason there is no trust is because of attitude and actions of the city. They have caused their own problems,” Lewis said.

The courts have found that the City violated citizens’ rights. Now the City will use taxpayers’ money to pay for its ill-advised actions. The only question remaining is, how much?

Photo of Ken MartinTrust 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:

Acuña v. City of Austin, Plaintiffs’ motion to enforce permanent injunction (Cause No. D-1-GN-19-008617) March 6, 2023 (159 pages)

Final Judgment, Acuña v City of Austin, March 18, 2020 (4 pages)

14th Court of Appeals decision in City of Austin v. Acuña (Case No. 14-20-00356-CV March 17, 2022 (10 pages)

Doug Becker’s warning letter, June 8, 2022 (2 pages)

Ordinance No. 20220609-080, Vertical Mixed Use II, June 9, 2022, (11 pages)

Minutes of the City Council meeting, June 9, 2022 (45 pages)

Ordinance No. 20221201-055, Residential in Commercial, December 1, 2022 (11 pages) )

Ordinance No. 20211201-056, Compatibility on Corridors, December 1, 2022 (23 pages)

Minutes of the City Council meeting, December 1, 2022 (40 pages)

Acuña v. City of Austin, Plaintiffs’ second amended motion to enforce permanent injunction and request for declaratory judgment, August 18, 2023 (18 pages)

City of Austin’s proposed order to settle Acuña lawsuit, November 16, 2023

Plaintiffs proposed order to settle Acuña lawsuit, November 17, 2023

Related Bulldog coverage:

Political shift on council undercuts land-use lawsuit, January 19, 2021