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.
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.
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?
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:
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
I think the members of the city council who ignored state law should pay the fine out of their own pocket.
While the City may be taking a frivolous approach to this matter, the City engineers in Transportation and Development Services who supported this argument, can be held professionally liable to sanctions through the Professional Engineers Board. The Professional Engineers have a duty AT ALL TIMES to be truthful and to protect the Public’s health, safety, welfare and property. They also have a duty to WARN OF DANGER to the Public’s health, safety, welfare and property.
The Engineers, like Robert Spillar and Kevin Shunk, have fully participated in this
charade and come to open houses and answered question. They didn’t even have the
decency to warn the home owners of the dangers of flooding and global warming
that will be caused by destroying trees and landscaping and then building taller and
taller apartments to collect solar heat and use Air Conditioning to transfer the extra
heat to the down town and Central Austin area air and surroundings.
They have a lot of anwer for.
The City is being extorted.