Preserve by-right zoning

Imagine that the zoning code gave the planning director the unfettered right to reduce the density of a project simply because he thought it was too dense. Zoning might allow, say, 300 housing units on a tract but the planning director could reduce the total to 200 if he thought 300 was just too many. No one would be able to take zoning entitlements at face value–published densities would merely be suggested maximums. The only way to determine what one could build would be to file a site plan and see what happens. By-right development would be dead, with each new development project having the potential to deteriorate into a public fight over density.

This is the California model. It’s a bad one. Badly needed housing projects in California are routinely subjected to round after round of circus-like hearings and litigation because little can be built as a matter of right. That system has produced the nation’s worst housing crisis. Los Angeles, a city four times Austin’s size, has 20 times as many homeless.

But this is what Austin’s draft land development code proposes–except that it vests this broad discretion in the Transportation Department rather than the Planning Department. It’s an astonishing expansion of the Transportation Director’s authority and a troubling erosion of by-right zoning. 

This is not hyperbole. Section 23-8D-1030(B) of the draft code provides:

Design and Construction Requirements. If a development application requires review under Article 23-8C (Transportation Review and Analysis), the director or the body responsible for acting on the application may require:

    (1) Delaying or phasing development until construction of municipal transportation infrastructure required to accommodate vehicle trips generated by the development or other transportation improvements necessary to directly serve the development; or

    (2) Reducing the density or intensity of the development, to the extent necessary to ensure that the capacity of the street network can safely accommodate vehicle trips generated by the proposed development.

Essentially, any development requiring a traffic impact analysis–i.e., any project generating more than 1,000 trips per day–will be vulnerable to this discretionary reduction in density or intensity. And in a city where so much of the street network is already at capacity (at least as judged by those who mainly care about free-flow traffic), it usually will be debatable how many more trips the network can “safely accommodate.” 

City Council–not the Transportation Department–should be in charge of setting densities. Council has already determined that we must zone our corridors for more density, knowing full well that these are already busy streets. More density on the corridors will mean more congestion, even though more density will also lead to an increase in transit, bicycle and pedestrian trips.  Density involves trade offs. But these trade offs must be made by Council. The Transportation Department should not have even theoretical authority to reduce densities below what Council, in its legislative capacity, has judged appropriate.