Austin Contrarian

Watson responds

Senator Kirk Watson responded in the comments to my criticism of his bill to incorporate the Congress Avenue Overlay into state law. I don't get many comments from elected officials, much less state senators, so the comment rates its own post.

Thanks for opening this discussion about the bill I've filed with Rep. Howard to preserve the most famous view of one of our most famous and important buildings in Austin. A couple of points I think I need to make:

First of all, this legislation would preserve what the City of Austin has done - it reinforces what the city has passed and implemented, and it acknowledges the variances that the council has already passed. That's the opposite of Austin-bashing bills that seek to undo a city policy or program. This aligns state law with city policy, and it helps ensure that the legislature won't work to actually undermine that policy in the future to help projects that the city doesn't want.

Beyond that, let's face it: the Capitol View Corridor is a technical name for something that the people of Austin place enormous value in. The view of the Capitol, and this view from Congress in particular, is an iconic part of the Capitol City - you see that every time someone stops when crossing Congress (hopefully with the walk sign) to take a picture of the Capitol up the street. It's been a vital part of this city since Edwin Waller first laid out the streets for our downtown in 1839 and designated this part of the city for the Capitol.

I remember the complaints in the late-80s about how new high-rises were blocking the view of the Capitol, and the grim jokes about how developers were going to start building in the middle of the street. How would Austinites react if 21st Century high-rises encroached on their Capitol view even more? No other Texas city has this wonderful downtown resource; it can't be the first thing we sacrifice in the name of making things easier for certain developers and property owners.

Furthermore, keep in mind, this beautiful building is in Austin, but it belongs to all of Texas. Legislators from other places like that they and their constituents can see it. It's much, much better to get rules in place before there's a problem than to deal with repercussions after a problematic project goes up.

One other point that needs to be made: there's no question that there should be opportunities to enhance our 24-hour downtown. But the notion that a lively downtown requires huge new buildings that encroach on the Capitol view and violate longstanding city policy is simply wrong. The Warehouse District, Sixth Street, South Congress and the Second Street Retail District - to name just four - all speak to that.

So it's a false choice to say that we have to choose between creating a vibrant section of downtown or preserving a famous, beloved view of the Capitol. Instead, what Rep. Howard's and my bill declares is that developers have to conform with Austin's figurative view of its downtown and our literal views within downtown. The bill rejects piecemeal development that's done on-the-cheap and variance-by-variance. And it ensures our community's face and its future aren't made subservient to private-sector profits.

I understand there are problematic properties on Congress that are difficult to develop under these long-standing rules and policies. But it's not the responsibility of the people of Austin and Texas to sacrifice something we hold dear and fundamental to our identity simply to solve the problems of the private sector. And don't forget, even if this bill passes, any indisputably good development can still come to the legislature and get exempted from this law.

So this bill doesn't end development on Congress. It simply limits bad development that encroaches on something Austinites hold dear, and it helps us preserve this thing that makes Austin special.

I appreciate the response and will put up something later responding to a few of these points.

 

Senator Watson has introduced a bill to strip Council of discretion to grant variances from the Congress Avenue Overlay

Back in the 1980s, the Austin City Council adopted something called the  Congress Avenue Overlay. The Overlay, which applies to both sides of Congress Avenue between Lady Bird Lake and the Capitol, requires any portion of a structure over 90' high to step back at least 60' from Congress Avenue. Its purpose, City code tells us, is to "protect the historic character and symbolic significance of Congress Avenue and to enhance the pedestrian environment of the area."  Austin City Code Sec. 25-2-165(A).

The Congress Avenue Overlay, until now, has been purely a creature of City ordinance, unlike the Capitol View Corridors, which are established by both City ordinance and state statute.

Austin's own Senator Kirk Watson wants to fix this. He's introduced a bill (SB 1272) that would prohibit the construction of new structures over 90' tall within 40' of Congress Avenue's eastern boundary and within 60' of  Congress Avenue's western boundary. This would eliminate Council's  discretion to weigh various public interests and grant variances from the Overlay.

I could understand such a bill being pushed by an Austin-bashing legislator from, say, Dallas, but this seems like a very odd piece of legislation for a former Austin mayor to propose.

I don't say this merely because I believe the Congress Avenue Overlay to be a bad bit of regulation (although I do believe it to be a bad bit of regulation). Fettering Council discretion like this is automatically bad for the City.

Let's assume for the sake of argument that requiring deep stepbacks along Congress Avenue vindicates some sort of public interest in the street's historic character or pedestrian charm or views of the Capitol. There are other interests at stake as well. These include the City's interest in redeveloping stagnant sections of Congress, its interest in encouraging the elimination of surface parking lots along Congress, and its interest in providing more room for hotels and office space along Congress. As things stand now, Council has the discretion to weigh the individual pros and cons of a specific project and decide whether the City's residents will receive a net benefit from a variance. Council also enjoys a lot of discretion to impose conditions on a variance, including design criteria that make the building more pedestrian-friendly. 

Council has granted such variances in the past for buildings on the east side of Congress Avenue -- most notably, the Frost Bank Tower, for which it reduced the setback from 60' to 40'. (I'm sure it's no coincidence that Senator Watson's bill adopts 40' for the eastern setback rather than the 60' provided by City ordinance.) On the other hand, Council recently rejected a variance for a proposed hotel on the west corner of 8th and Congress. In the case of the Frost Bank Tower, Council concluded the benefits from the project outweighed the costs of allowing the intrusion into the setback. In the case of the Austin Hotel, it concluded the opposite.

The point isn't that one decision was right and the other wrong. The point is that Council has a bunch of interests to weigh, and in a specific case, the benefits of allowing a building to intrude into the setback might outweigh the "cost" of the intrusion. A bill like Senator Watson's strips Council of its ability to weigh various interests, and elevates the interest served by the Congress Avenue Overlay (whatever that is) above everything else. 

What's more, Senator Watson's bill has no variance process. Anyone who wants to build in the setback will have to start by finding a senator or representative willing to sponsor a piece of legislation. That's probably too high a hurdle for any development project to jump. Such projects simply will not be proposed. This will make it impossible to track the opportunity cost of the Overlay in the long run. How can you keep a tally of foresaken projects when the projects are never even proposed?

There is value in a city having the right to make its own land-use decisions without having to appeal to state officials. That was obvious enough to Senator Watson yesterday, when he was quoted in the Statesman making similar arguments. Representative Paul Workman has introduced several bills that would limit cities' authority to restrict impervious cover, among things. According to the Statesman:

State Sen. Kirk Watson, D-Austin, the bulwark for Austin against such proposals, said the Legislature shouldn’t step into what he considers a city matter.

“People who oppose development rules that Austin has lived under for more than 20 years have every right to try to change them through traditional democratic means at City Hall,” Watson said. “But when they start to turn legislators — most of whom live a long way from Austin — into a city of Austin appeals court, it starts to look a little undemocratic. That’s why the Legislature has been so skeptical of Austin-bashing bills in recent years. And it’s why I think legislators will be skeptical of these, as well.”

If a city should have the right to regulate impervious cover limits in its boondocks, then shouldn't it have the right to regulate its own main street? I don't understand how Senator Watson can oppose Workman's bills under a "cities' rights" theory while proposing to micromanage his own hometown's  main street. Representative Workman's bills would apply to every city in the state, so they at least have the appearance of being evenhanded; Senator Watson's bill targets a specific street in Austin. 

Austin City Council is more than capable of weighing the various public interests at play on Congress Avenue. The City should be left alone.

Will Austin's forthcoming bag ban make (some of us) sick?

Maybe. According to this paper (pdf) by Jonathan Klick and Joshua Wright, San Francisco experienced a  spike in ER visits from food-borne illness when it adopted its ban in 2007. From the paper's introduction:

In an effort to reduce litter and protect marine animals, jurisdictions across the globe are considering banning plastic grocery bags. In the US, California leads the way. San Francisco enacted a county-wide ban covering large grocery stores and drug stores in 2007. It extended this ban to all retail establishments in early 2012. Los Angeles followed suit in 2012, as did a number of smaller cities throughout the state. Some municipalities have imposed taxes on the bags rather than implement direct bans.

These bans are designed to induce individuals to use reusable grocery bags, in the hope that a reduction in the use of plastic bags will lead to less litter. Recent studies, however, suggest that reusable grocery bags harbor harmful bacteria, the most important of which is E. coli. If individuals fail to clean their reusable bags, these bacteria may lead to contamination of the food transported in the bags. Such contamination has the potential to lead to health problems and even death.

We examine the pattern of emergency room admissions related to bacterial intestinal infections, especially those related to E. coli around the implementation of the San Francisco County ban in October 2007. We find that ER admissions increase by at least one fourth relative to other California counties. Subsequent bans in other California municipalities resulted in similar increases. An examination of deaths related to intestinal infections shows a comparable increase.

Using standard estimates of the statistical value of life, we show that the health costs associated with the San Francisco ban swamp any budgetary savings from reduced litter. This assessment is unlikely to be reversed even if fairly liberal estimates of the other environmental benefits are included.

This is a small sample, obviously, so I take it as only weak evidence for a causal effect. But one reason the result is at least plausible is that reusable grocery bags can be nasty things:

Williams et al (2011) randomly selected reusable grocery bags from consumers in grocery stores in Arizona and California. They examined the bags, finding coliform bacteria in 51 percent of the bags tested. Coliform bacteria were more prevalent in the California bags, especially those collected in the Los Angeles area. E. coli was found in 8 percent of the bags examined. The study also found that most people did not use separate bags for meats and vegetables. Further, 97 percent of individuals indicated they never washed their reusable grocery bags. Bacteria appeared to grow at a faster rate if the bags were stored in car trunks. This study suggests there may be large risks associated with using reusable grocery bags, though it does imply that fastidiously washing bags can virtually eliminate the risks. However, the survey results suggest that virtually no one washes these bags.

Again, this may be a mere coincidence rather than a real phenomenon.  It will be interesting to see whether Brackenridge and Dell see a spike in food-poisoning cases after our bag ban goes into effect in March. If a real phenomenon, will Austin see more or less illness than San Francisco? On one hand, Austin's ordinance is actually a good bit more stringent than San Francisco's 2007 ordinance, which permitted the distribution of recyclable paper bags and compostable plastic bans, and which did not even apply to all grocery stores in the city. Our Council really, really wants Austinites to use reusable bags. On the other hand, a lot of Austinites shop at suburban grocery stores that aren't subject to the ban.

Frequently discarding used bags and buying "fresh" reusable bags may be a wise precaution, regardless. It's true that will wipe out the alleged environmental benefit of using reusable bags, but that benefit is minimal anyway if you're not a litterer.

Is Austin illegally expiring real-estate development projects?

State representative René Oliveira has asked (pdf) the Texas Attorney General for a formal opinion on whether the city of Austin is expiring real estate development projects in violation of the vested rights statute, Chapter 245 of the Local Government Code.

You can read the City’s response here (pdf).

The vested rights statute protects “projects” from regulatory change. It does this by freezing the regulations on the date the applicant files a permit application giving fair notice of the project. A development project typically requires a series of permits – preliminary plan, final plat, site plan, building permits, utility service – often spanning years. The vested rights statute requires the city to apply the same regulations (with a handful of exceptions) to each subsequent permit in the series.

The crux of this particular dispute is, when do vested rights expire? That is, when can a city make the developer start from scratch and comply with current regulations?

Austin has a confusing thicket of regulations purporting to dictate when “project” rights expire. The rules vary according to when the project was initiated and where it is located. And, just to make sure things are really confusing, the city doesn’t even enforce some of the rules on the books because -- by its own admission -- some of them conflict with Chapter 245.

Rather than get lost in the swamp, let me focus on two key regulations which the city does enforce, at least on projects initiated after September 6, 1997. First, the city enforces a sort of "hard" expiration date on projects. It requires a developer to obtain all building permits and file a notice of construction within a fixed period of time after the first application. That period is five years in the “desired development zone” and three years in the "drinking water zone." Thus, according to this regulation, once a developer files its first permit application in the series – say, a preliminary plan application – it has either three or five years to get the plan approved, the final plat approved, the site plan approved, the building permits approved and poise itself for construction, or else the project must start from scratch under current regulations.

But a developer isn't guaranteed even this minimum project duration, thanks to another provision, which states that, “If a building permit for a building shown on a site plan or a notice of construction expires before construction begins, the project, including the preliminary subdivision plan, expires.” The City, in other words, conditions project duration on each piddling building permit – if a developer allows one to expire, its project expires and it loses its vested rights. Think of this as a "dynamic" expiration date.

So this is what the City does. The problem is that these project duration limits conflict with Chapter 245, at least as it was amended in 2005.

When it was enacted in 1999, Chapter 245 did not directly address when vested project rights expire. In 2005, the Legislature enacted a couple of major amendments to Chapter 245. One of these added a new section addressing permit and project duration:

A regulatory agency may enact an ordinance, rule, or regulation that places an expiration date of not less than two years on an individual permit if no progress has been made towards completion of the project. Notwithstanding any other provision of this chapter, any ordinance, rule, or regulation enacted pursuant to this section shall place an expiration date on a project of no earlier than the fifth anniversary of the date the first permit application was filed for the project if no progress has been made towards completion of the project.

Tex. Local Gov’t Code Sec. 245.005(b) (emphasis added). This section only applies to permits where the permit application was filed on or after September 1, 2005. A separate subsection provides an explicit list of benchmarks that must be considered progress towards completion of the project.

The italicized language is the key. It really does two things. First, it sets a minimum period (five years) for vested rights. Second, it allows cities to apply this expiration date if "no progress has been made towards completion of the project."  The logical implication, I believe, is that vested rights cannot be expired if progress has been made towards completion of the project.  Why? Vested rights are a protection the Legislature has granted property owners and developers against cities. Cities don't have the constitutional authority to limit those rights. In particular, they can't set an arbitrary expiration date on them; they need the Legislature's permission. The Legislature has given them permission to expire, after five years, projects on which no progress has been made. It has not given them permission to expire any others.

Austin's hard three-year limit on projects in the drinking water zone flatly conflicts with the five-year minimum. But both the city's "hard" and the "dynamic" expiration dates allow the city to expire projects even when progress has been made towards completion. If Section 245.005(b) is given its natural interpretation, the city cannot do this. Vested rights do not expire merely because a building permit expires or a site plan expires. Once progress has been made towards completion of the project, they endure regardless of any city-imposed expiration date on individual permits in the series.

The City obviously does not agree. If you read the City's letter linked above, though, you will see that the City does not address the language in Section 245.005(b), other than to note in a footnote that it applies only prospectively. The City mainly argues that it (and all cities) have always had the authority to put time limits on permits, and that Chapter 245 implicitly recognizes this because it forbids them from retroactively shortening those time limits. Again, though, the City fails to recognize the distinction between a permit -- which is a City creation and therefore can be limited by the City -- and vested project rights -- which are a Legislative creation and  can only be limited as allowed by the Legislature. 

The Attorney General now has a chance to weigh in. The AG does not always render opinions when asked, and its opinions are not binding in any event. I predict the interpretation will eventually be settled by a court. But both Texas municipalities and developers could use some guidance in the meantime. 

Disclaimer: The opinions expressed herein are the author's and do not necessarily reflect the opinions of any other attorney or of any of the author's clients. The opinions offered here are not intended as legal advice.

Don't ban. Tax.

Council might vote tomorrow on whether to ban the bags.  It's not clear whether they'll ban just plastic bags or both plastic and paper.  The Statesman counts enough votes for a ban of both.

I think one can make a case that a nickle tax or so on plastic bags is superior to doing nothing. Both a tax and doing nothing are superior to a ban, in my opinion, and certainly superior to a ban of both paper and plastic.

Let's start with why we should do anything at all about plastic bags.

Plastic bags are useful. Ban proponents like to tout the ease of switching to more durable bags and making behavioral changes, but the fact is that these things still have a cost. The cost depends largely on individual characteristics like conscientiousness (are you the kind of person who will remember to bring the reusable bag?), shopping patterns (are you the kind of person who makes a lot of spontaneous purchases?), and self-identification as an environmentalist (are you Lisa Simpson or Mr. Burns?). The cost of a ban is highly  idiosyncratic, and likely the lowest for the people who already use reusable bags and are most vocal about a ban.

The financial cost to the City of disposing of the bags (including the imputed cost of landfill space) provides no compelling justification for a ban.  If you believe these numbers, the 263 million plastic bags Austinites use each year cost the City $850,000 per year to put in landfills and clean up as litter.   That works out to around 3 cents per bag.  (Not that that's the right accounting -- we pay the City to haul our trash to the landfill, including our plastic bags, so that $850,000 exaggerates the economic cost of the externality.)  A 3-cents-per-bag externality does not justify a ban; at most, it justifies a 3-cents-per-bag tax.

I do agree, though, that plastic bags present a special problem.  Because they are so light, they're carried off by the slightest breeze. They are prone to getting away from even the most conscientious users. They are thus unusually likely to become litter. Then they do not stay in one spot long enough for anyone to have an incentive to pick them up, and of course do not decompose, so they are unusually likely to remain litter.

Plastic bags are a real litter problem.  

For me, the pertinent question me is, Are we better off with a nickle-per-bag tax or an outright ban?

I think we're better off with the tax. A tax by itself will dramatically reduce the use of plastic bags, judging from the experience of other cities. A tax will also generate money we can use to clean up other litter -- plastic bags aren't the only things littering our creek beds and parks. The city could divert the $4 million it intends to spend on educating consumers about the ban to cleaning up litter. The City could put a lot of people to work and clean up a lot of litter with $4 million and the tax income stream. If you're really interested in a cleaner city, a tax will get you that.

Note that the litter issue is an issue for plastic bags, not paper bags. Paper bags (particularly the ones at the grocery store) are a lot heavier and don't blow around as much.  Plus, they are biodegradable.  And recyclable, for those who are worried about landfills. And what do you have against trees, anway?   I don't see any justification for taxing paper bags, much less banning them. 

A flat ban of both paper and plastic would cause a large deadweight loss by forcing people (even if just occasionally) to over-invest in fancy bags. Even the most environmentally saintly among us will occasionally find herself at the checkout counter without her reusable bag. She will have to purchase a new, heavy-duty reusable bag that she will no longer need once she gets home. Someone who forgets her reusable bag just once a month will, by the end of the year, have twelve extra, expensive "resuable" bags.  (Calling a bag "reusable" doesn't mean it will be re-used.  Conversely, calling a plastic bag a "single use" bag doesn't mean it will only be used once.)  Buying too many heavy-duty bags is a form of waste, just like using too many flimsy single-use bags.

The only justification for banning paper bags, really, is that they're more expensive and (probably) more energy-intensive than plastic bags, so if we ban plastic bags then we've just got to ban paper bags as well, because otherwise we're just encouraging people to waste energy.  The proper way to address that concern is not to ban the less-energy-intensive alternative in the first place, but to tax paper and plastic at the same rate.  Taxing paper bags doesn't solve any externality I see, but it will make a tax on plastic bags easier on the grocers.

Update: Wells Dunbar has the preview at KUT.

My take on Edwards Aquifer Authority v. Day

I don't think this characterization by Adam Schwitters at Burnt Orange Report of the Texas Supreme Court's decision in Edwards Aquifer Authority v. Day is right. In particular, I don't think the opinion means that "aquifers and other groundwater features are not treated as a public resource" or that "our limited stocks of groundwater . . . are now subject to the whims of landowners who happen to own property over these features."  

Here's my bird's eye view of the opinion: 

The Edwards Aquifer was being depleted through overuse, so in 1993 the Texas Legislature created the Edwards Aquifer Authority to manage the aquifer.  The Edwards Aquifer Authority Act requires everyone to get a permit from the EAA to pump water from the aquifer (with limited exceptions).  The EAA cannot, by law, permit more than 542,000 of acre-feet of water to be pumped from the aquifer per year.

The issue in Day was, How should the EAA divvy up the permits? There are an infinite ways to do this, but the EAA Act settled on about the dumbest system possible: it assigns water rights based solely on prior use. Hence, a landowner who drew a lot of water in the past gets more water going forward than a landowner who drew just a little water in the past.  

That might sound fair at first blush -- if we're going to ration water, we don't want to cause unnecessary hardship by cutting people off from their supply of water -- but historical use does not require that the use be a current use; the use might have been abandoned a decade ago.  What's more, these permits are transferable, which means that what the EAA is really handing out is the right to a future stream of income. 

So imagine two adjacent 100-acre tracts.  One tract has always been used for cattle ranching and has always drawn a modest amount of water per year. The other tract also has always been used as a cattle ranch except for a five-year period in the mid-1980s when the owner's idiot nephew talked him into trying to grow watermelon and watercress and they pumped 1,000 acre feet per year from the aquifer. The venture failed miserably. But under the EAAA scheme, that five-year span entitles the tract to a huge amount of water in perpetuity while the other tract gets shut out, except for a small amount to water the cattle.

From an equity standpoint, that's a pretty strange system -- the people who were the greediest and most profligate users in the past get the most going forward. And it's an idiotic system from a policy standpoint -- if landowners know in advance that that's the rationing system that will be put in place, they have an incentive to draw as much water as possible to establish high historic usage rights. The common-law rule of capture encourages waste, not conservation, and using it as the basis for a rationing system was . . . unwise.

I do not read Day to hold that the EAA or other groundwater conservation districts cannot cap groundwater withdrawals. On the contrary, the Court said they can.  Nor do I read Day to require EAA or groundwater conservation districts to compensate landowners when they restrict groundwater withdrawals. Rather, I think the Court "merely" held that if the state misallocates water rights among landowners -- by, e.g., allocating water based solely on historic use -- then it might owe some landowners compensation for a takings. 

I put "merely" in quotes because the opinion has created a lot of uncertainty. What permitting system would not subject the state to takings claims? The Court doesn't say. The Court did not even hold that Day has a valid takings claim -- it remanded that to the trial court to determine based on the notoriously vague regulatory takings standard.  Can the EAA permitting system be reformed by the Legislature without subject the state to claims by existing permit holders? Dunno. Will the case generate a lot of takings claims from landowners? Likely, although it's unclear what they'll have to show to perfect a claim.

The EAA permitting system is now a mess. No question about that. One can certainly argue that rectifying the EAA's unwise water permitting system is not worth this mess. On a positive note, though, this will be the last time that water rights are handed out solely on the basis of the principle, "The most to he who used the most."

Sometimes parking regulations don't matter

I think minimum parking requirements are bad policy.  If I had my way, the City would abolish its minimum parking requirements tomorrow. 

I'm a Shoupie.

But it's worth reminding oneself every now and then that the regulations on the books -- even the bad ones -- don't always matter. Minimum parking requirements don't matter when the market demands (or, at least, the developer perceives the market to demand) more than the minimum.

Greystar's proposed mixed-use project at 1200 S. Lamar (the South Alamo drafthouse site) is a case in point. According to the parking calculations on the site plan, the project will provide almost 60% more parking than code requires.

I'm sure this demand for parking is being driven by the Alamo Drafthouse. Anyone who's been to the South Lamar Alamo -- or tried to get take out from Suzi's China Kitchen -- on a Saturday night knows that the Alamo gobbles up parking.

There is good evidence that parking regulations do matter in general. They can matter a great deal in specific instances. How much extra space do we reserve for empty asphalt thanks to city regulation? We don't know and we can't know unless the city gets rid of its minimums. But it's important not to be seduced into believing that every massive parking garage or expansive surface lot is a manifestation of bad city regulation.

Internet wine purchases pose a clear and present danger to Texas consumers

Example #29 that Texas, despite its reputation as a hotbed of free-market conservatism, is no such thing.  Or at least its Legislature is not.  Nor -- perhaps less surpisingly -- is its state bureaucracy:

Texas is putting a cork in wine shipments from a significant number of out-of-state retailers.

State officials have teamed up with FedEx, UPS and other shippers to ferret out wines being sent to Texas by websites that don't have proper permits.

That has prompted Wine.com and several other resellers to restrict sales to consumers in the Lone Star State.

Wine.com has 30,000 active customers statewide, CEO Rich Bergsund told the American-Statesman on Thursday. Those customers were notified via email this month that the company had halted shipments of wine to Texas.

Other sites not currently shipping wine to Texas include TheWineBuyer.com, WineBid.com, WineExpress.com and WineLibrary.com.

A law blocking the deliveries isn't new, but the Texas Alcoholic Beverage Commission has ratcheted up enforcement efforts this year.

"Anybody who is going to sell to Texans has to have a permit," TABC spokeswoman Carolyn Beck said.

You might ask, So what?  In-state retailers must get permits.  It's only fair to require out-of-state sellers to do the same.

The catch is that out-of-state sellers can't get permits:

And, right now, Beck said, there's no law enabling out-of-state resellers to obtain permits allowing them to sell wine here. "They haven't been authorized by the Legislature," she said.

In March, TABC investigators reviewed reports submitted by shipping companies and identified about 51,000 wine deliveries from 177 firms thought to be improperly sending wine to Texans, Beck said.

By June, increased TABC scrutiny had helped drop that number to about 35,000 wine shipments from 112 resellers.

TABC doesn't even try to justify this as a consumer protection measure.  And it's obviously not.  Buying wine from Wine.com poses no more threat to health and safety than buying from the local liquor store.  The only ones who benefit from such a rule are Texas wine wholesalers and retailers.  Texas consumers lose access to greater variety and lower prices as wine merchants squelch an incipient source of competition.

Alcohol peddlers are damned good at protecting their market. 

Although I'm not a libertarian by any measure, I confess that I have certain . . . tendencies.  And I think we'd all be better off if voters would presume that every permitting requirement is an anti-competitive, anti-consumer measure until the state to proves otherwise. 

Thankfully, Texas booksellers didn't have the political clout wielded by wine merchants and wholesalers when Amazon was getting off the ground back in the 1990s, else the State would have banned buying books off the internet, too.

/rant

Tinkering isn't good enough

City Council continues to be remarkably tone deaf on the issue of tax breaks for historic landmarks.  Council wants to tinker with the structure of the tax breaks.  But what people are mad about is Council's bad judgment in handing out tax breaks, not necessarily the structure.  The average Austinite does not believe that preserving a mansion once owned by the the proprietor of Austin's first cash-only building materials business is worth the loss of $34,772 in annual tax revenue for the city, county and school district.   Capping the maximum (city) tax deduction at $2,000 or $2,500 does not cure bad judgment.  Nor does requiring the beneficiaries to fill out a form every year justifying the tax deductions.

I personally do have a problem with the program's structure that cannot be fixed by mere tinkering.  August Harris, vice president of the Heritage Society of Austin, is correct that tying tax breaks to renovation costs doesn't take into account the development rights that owners give up.  These can be quite valuable.  But they aren't that valuable to the owner of a stately West Austin mansion whose home is approximately the best and highest use of the property.  They are valuable to the East Austin owner who is forced to preserve a small, creaky structure.   Compensating homeowners through tax breaks over-compensates the first and under-compensates the second.  It would be more sensible, and more progressive, to collect taxes from everyone and make straight cash payments to owners based on the actual burden imposed by the landmark designation.  

Complaining is cheap

The City is proposing to tighten the standards for its Residential Permit Parking Program.  This is the program by which the City transfers to homeowners, for free, effective ownership of a portion of the public right-of-way in front of their houses.  The new standards would "raise the bar on documenting need" by, for example, requiring traffic studies.

To the extent this reflects a new-found hostility by City planners to neighborhood demands to exclude outsiders, I'm of course entirely sympathetic.  I will also be happy if the new standards make it more difficult for neighborhoods to participate in the RPPP.

But as a matter of policy, this makes no sense.  Parking near busy commercial and popular entertainment centers is scarce.  It is valuable.  The scarcer the parking on commercial corridors, the more valuable the parking spots on residential streets.  The City's new standards are simply another way of telling neighborhoods and nearby businesses, "We want to make sure that public demand for parking is really, really high before we ban it."   It is as if the City wants to verify that a parking ban will inflict maximum harm.

And parking bans do harm neighboring businesses.  It is of course true that spillover parking annoys some homeowners.  There is no sense trying to tell them they should not be annoyed -- if you are annoyed, you are annoyed, and that's the end of the matter.  But this kind of externality is perfectly symmetric.  Banning parking because it annoys a homeowner inflicts a cost on neighboring businesses by stripping them of a portion of their existing, limited supply of parking.

What the City ought to do is minimize the net cost of these externalities.  Who cares more?  If homeowners value empty asphalt more than neighboring businesses and their customers value parking spaces, then we should assign the spots to the homeowners.  And vice versa.

I suspect that in high-demand areas like South Congress, the businesses and their patrons value the spaces more.  But there's an easy way to settle this:  meter the spaces.  The meter income will tell us what value the public places on the spaces.  Price the spaces accordingly and then allow homeowners to buy the spaces in front of their homes.  The spaces will go to the party who values them the most. 

Homeowners would dismiss this policy as unfair because, seriously, who will or can pay a big chunk of money to keep the street clear in front of his home.  But that's the point.  Complaining is really, really cheap.  The City today is transferring property rights from the public to groups of homeowners without any compensation to the public, based on nothing more than cheap talk.  We can't tell how much someone really cares until we make him pony up some dough.