TX Appeals Court Holds Property Owners Were Entitle to Written Notice of Proposed Changes to the Land Development Code Under State Statute

This post was authored by Victor Gesuele of Touro University Jacob D. Fuchsberg Law Center

The City of Austin commenced a thorough revision of its land development code (LDC). A public hearing was held on October 26, 2019, by the city’s “zoning commission, named planning commission.” Notice of the hearing was published in a local newspaper by the planning commission.

Residents were not happy with the broad changes to the LDC. A total of nineteen property owners contested the changes to the LDC by filing suit against the City of Austin. The property owners alleged that they were not given proper notice of the changes to the LDC. According to Texas Local Government Code § 211.007(c), “written notice of each public hearing before the zoning commission on a proposed change in a zoning classification shall be sent to each owner, as indicated by the most recently approved tax roll…”  The city argued that the revising of the LDC only required a notice by publication.

The city supported its arguments by citing two cases in California. Both Wanamaker v. City Council of City of El Monte, 200 Cal. App. 2d. 453, and Claremont Taxpayers Association v. City of Claremont, 233 Cal. App. 2d 589, discussed similar notice provisions as enacted in Texas Law. The Texas Court of Appeals noted several reasons that the cases in California did not support the city’s argument. The most significant distinction was that the California cases did not rely on the statutory text. The Texas Local Government Code was clear and unambiguous. It could only be interpreted to read that “each property owners” was to receive proper notice. The city claimed that it would be absurd to notify over 250,000 property owners, however the Court of Appeals noted that tax documents are routinely mailed to all property owners.

The city argued that the property owners did not have the right to protest the changes to the LDC. The city claimed the public was advised that zoning protests were not permitted for protesting broad legislative amendments, including the comprehensive revisions to the LDC. The prohibition against zoning protests were published in public memoranda, at public hearings, and on the city’s website. The city further claimed there was no standard measure to ascertain the meaning of 20% in the Texas Local Government Code § 211.006(d) which read, “the protest must be written and signed by owners of at least 20 percent.”  The Court of Appeals dismissed this argument, noting that the property owners have a right to protest a change to a “regulation or boundary”.

The Court of Appeals ruled in favor of the property owners. The Court noted that the revisions to the LDC were a change to the City of Austin’s zoning ordinance. The court held that the statute requiring written notice and protest provisions applied. The court further stated that, “the City Parties have failed to preserve their complaints that trial court’s final judgement does not inform them with sufficient specificity how to calculate whether a protest’s twenty-percent threshold has been satisfied.”

City of Austin v. Acuna, 651 S.W.3d 474 (Tex. App. 2022)