CodeCronk, Part 2: Code reform that’s worthy of support
In the first piece in this series, we detailed the history of Austin’s “Land Use Development Code.” If you’ve yet to read it, we recommend doing so; it will help you make sense of this piece.
We’ll be brief: To be worthy of support any new land development code will need the following three elements. If any are lacking, Austin will continue to suffer from explosive unaffordability, desperate lack of housing variety, and will increasingly drive away needed housing, businesses, and residents.
Whatever else comes from this code rewrite process, one primary principle should guide the final result: A normal person should understand it.
In our last installment, we discussed the so-called “cottage lobbyists.” This is a special class of lobbyists that exist for no other reason than to guide property owners through the city hall development process. If that sounds complicated and expensive, that’s because it is.
If you want to build a shed, or add a bathroom on private property you shouldn’t have to hire a lobbyist to do so. This shouldn’t be complicated.
The second key component of simplicity is the actual length of the document. The existing code is a tremendous 1,100 pages long, the last draft of CodeNext was some 200 pages longer. A key metric of any code rewrite should be that the code is straightforward, with less requirements, resulting in a shorter document.
In addition to the indirect costs one incurs by having to hire lawyers and lobbyists to navigate city hall, Austin’s current land use development code also imposes direct costs: So-called “development fees.” Like time, the fees associated with development drive up the cost of the ultimate product – the office, house or apartment.
Fees, generally, are supposed to reflect the cost of service. That means, the staff time needed to review the plans and development to ensure its compliance with the code. With a simpler document, the need for staff time should be reduced, resulting in lower fees. If Austin is truly committed to housing affordability, the new code should reflect that desired outcome. Mayor Pro Tem Delia Garza once showed the Council at a work session all of the fees and costs associated with building her accessory-dwelling unit (ADU). It was well in excess of $20,000. The new code should seek to limit the amount and cost of fees on housing.
WARNING: This is a boring lawyer phrase.
But it’s immensely powerful.
“By-right” entitlement (or “by-right” zoning) means that, as long as you comply with the code, the government HAS to permit what you’re doing. They can’t drag you through a multi-year “process,” delaying and fighting you because they would use your property differently, if they owned it “By-right” entitlement would instantly streamline development procedures.
The term ‘Use by Right’ refers to a property owner’s use of property and structures in manners consistent with that which is listed as permissible in the zoning district in which his or her property is located. A ‘use by right’ is a use permitted in a zoning district and is therefore not subject to special review and approval by a local government. For example, the operation of a bookstore on property zoned for commercial uses would be considered a ‘use by right’. Other terms that may be substituted for ‘use by right’ include, principal use, permitted use, or primary use. An accessory use (to a principal use) is also considered a ‘use by right’.
A use that is considered a ‘use by right’ is listed within each zoning district in the zoning ordinance. Each zoning district in the zoning ordinance will have a different list of land uses that are considered to be ‘uses by right’ in that particular district. Those uses are allowed, without the need for major detailed local government review, so long as they meet the district standards and requirements specified in the zoning ordinance. One still needs to obtain a zoning permit, but that permit is usually issued relatively quickly, without going before a planning commission or other board. A ‘use by right’ is distinctly different than a special exception use or conditional use, which is only allowed after a review and approval by the appropriate local government board or commission.
Dramatic expansion, or universal enactment, of “by-right” entitlement is a non-negotiable component of any land use development code reform worth supporting.
There you have it: Simplicity, Fee Reduction/Elimination, and “By-right” entitlement.
If the land development code reform contains those elements, resulting in a code that promotes affordability and serves Austin residents and businesses, not City bureaucracy, it will be worth supporting. If it doesn’t, it won’t. Currently, only city manager Spencer Cronk knows, but we’ll all see what the plan is on October 4th.
All changes to the Code should follow the simple test: Does it promote affordability? If it doesn’t, it should be scrapped.
Obviously, given recent history, the odds of the Austin City Council reforming the land use development code to include Simplicity, Fee Reduction, and “by right” entitlement seem…low. But sometimes miracles happen. We’ll keep watching, and speaking up for effective policy for all of Austin.