Austin Contrarian

VMU: Time for City Council to enforce the bargain

The City Council has not been tested on the VMU ordinance until now.  The first few neighborhood opt-out applications respected the VMU "bargain":  allow density on the transit corridors; relieve the development pressure on neighborhood interiors. 

But now Council must confront real neighborhood intransigence.  Hyde Park, Judges Hill, and East MLK have asked to opt nearly all of their eligible tracts out of the VMU district.  (M1EK's scathing reaction to the Hyde Park application is worth a read.  I analyzed Zilker's VMU application here.)

Farmers Branch is now going after renters as well as illegal immigrants

Farmers Branch has escalated its odious campaign to ban illegal immigrants:

A Dallas suburb mired in a lawsuit over its attempts to bar illegal immigrants from renting in the city asked a federal judge on Monday to consider its newly-revamped ordinance instead of the previous one.

The request would consolidate the ordinances and allow the judge to deliberate the validity of both, said Michael Jung, attorney representing Farmers Branch.

The City Council approved a rule last week banning home and apartment rentals to illegal immigrants. The new rule would require potential tenants to get rental licenses from the city, which would ask the federal government for the applicant's legal status.

Farmers Branch has already been fighting a lawsuit filed by apartment complex owners and civil rights groups over an earlier rule barring landlords from renting apartments to most illegal immigrants.

U.S. District Judge Sam Lindsay blocked Farmers Branch from enforcing its original ordinance. The judge found Farmers Branch city officials attempted to create their own classification system for determining which noncitizens could rent an apartment. [AC: court opinion here (pdf).]  The judge also wrote that the ordinance essentially deputized landlords to serve as federal immigration agents.

Thus, to keep the illegal immigrants out, Farmers Branch wants to make all renters get permission before signing a lease -- and the rule would apply to both single family homes as well as apartment complexes.

Forget about the patent xenophobia.  Can you imagine the impact this precedent would have on the rental markets in this state?  Lots of jurisdictions are just itching to restrict rentals.  I can't imagine a better strategy than requiring renters to come groveling to the city for permission to live there.  And if a city can condition a rental "license" on legal residency, why not on other things? 

The mere prospect of having to apply for a license will deter many if not most renters.  Developers aren't stupid; they will recognize that new apartment complexes will be hard to fill.  They won't build them.  A city might as well zone out all multi-family.  That would frankly be less insulting to renters.

I have a hard time believing that the local government code gives cities this kind of authority. I can't tell whether the federal judge will consider state-law challenges to ordinance; that's usually discretionary. (The plaintiffs may not have even raised any state-law challenges.)  But I hope some judge somewhere eventually buries this ordinance. 

Rural subsidies

This ought to be cause for celebration:  New York state is closing some low- and medium-security prisons because it doesn't have enough felons:

On Jan. 11, the Spitzer administration announced plans to close Camp Gabriels, two other corrections camps and a medium-security prison, all of which have been operating below capacity since 1996 because of a decline in the number of nonviolent felons, the state’s corrections commissioner, Brian Fischer, said.

Closing those prisons, Mr. Fischer said, would save the state millions of dollars, free up money for the treatment of sex offenders and mentally ill inmates, and finance programs like anger management and vocational training, meant to prepare prisoners for their release.

But New York has used prisons as a kind of rural subsidy (as has Texas), which has left some little towns hooked on prison jobs and prison labor.  For example, "Camp" Gabriels, one of the prisons slated to close, employs 136 people in sparsely populated Franklin.  Predictably:

[s]mall businesses have staked their survival on the prison workers who patronize their stores. Local governments and charities, meanwhile, have come to depend on inmate work crews to clear snow from fire hydrants, maintain parks and hiking trails, mow the lawns at cemeteries and unload trucks at food pantries. . . .

“All those services, when you put that into dollars, there’s no way we’d be able to hire people to perform them,” said Mary Ellen Keith, supervisor of the town of Franklin, which relies on the crews to cut overgrown brush from the sides of 67 miles of local roads, among other tasks.

The locals, prison workers and unions are organizing a campaign to save the prisons.  It's only a matter of time before they figure out that the solution is to increase the demand for what they're selling.  Mete out stiffer sentences for recreational drug users, for example.  Jail parking ticket scofflaws.  Or just criminalize can-kicking.

West Campus development

I've prepared a Google map charting the VMU development in the West Campus area.  It's a work in progress.  Most of the markers have only the name of the project and the number of units.  I intend to update the map with photos and other information.

Until I figure out how to embed a Google map, I will have to content myself with screen shots.  In the maps below, the blue markers/shading indicate the project is under construction.  The red markers/shading indicate the project has been completed.

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North West Campus

South West Campus

Bayes' theorem and "Deal or No Deal"

Warning:  Off-topic.  This is an update of this post on "Deal or No Deal."  Math and other non-zoning-related stuff below the jump.   

My "amicus brief of sorts"

While at the clerk's office pulling the trial briefs in the RG4N case, I came across this reply brief (pdf) filed by Casey Dobson on Allandale's garden-center claim.  I laughed out loud when I saw it, which I'm sure annoyed the little old lady sitting two terminals over.  Dobson quoted at length from my post last July, calling it an "amicus brief of sorts."

Dobson's point was that the legal issues had to be obvious if even some random armchair blogger could figure them out.  Still, this was the first time I've been quoted as a blogger in a brief (and apparently a first for Dobson as well).

Why the City hires outside counsel

A new RG4N talking point that popped up in the comments on this Chronic blog:  If RG4N's suit was really meritless, the City of Austin should have handled the lawsuit in-house instead of "wasting" hundreds of thousands of dollars hiring Casey Dobson.

This is silly, and anyone who knows anything about the practice of law knows it.  It is utterly routine for the City to hire outside counsel.  Just check out past City Council agendas (accessible here).  I chose six meetings at random and the retention or payment of outside counsel was on the agenda in four of them:

1. June 21, 2007 (authorizing payment to Cox Smith Matthews for the Harry Whittington lawsuit);
2. February 1, 2007 (contract with Scott, Douglass & McConnico relating to design and construction issues with airport parking garage);
3. December 7, 2006 (contract with Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel relating to ABIA expansion);
4. November 16, 2006 (authorizing a total contract amount of $1,575,000 to Brown, McCarroll for advice on water supply issues).

The Northcross arrangement is nothing special.

There are two reasons the City relies on outside counsel.

First, the City's attorneys already have plenty of stuff to do.  The City doesn't have attorneys on staff who can drop everything they're doing to spend most of their time litigating a single case.

A lawsuit can eat up hundreds of hours of attorney time even when it's a loser.  For example, it's not unusual in products-liability litigation for tens or even hundreds of thousands of dollars to be spent responding to "expert" technical opinions that are eventually rejected as junk science by the judge.  Judges don't like to decide things until they think both parties have had a complete opportunity to make their cases.

Second, and more importantly, the legal profession is now extremely specialized, and the City does not keep enough attorneys on staff to cover all areas of specialization.  Land-use litigation like the Northcross suit is a specialty. Condemnation litigation is a specialty.  Negotiating complex master development agreements is a specialty.  There are many, many other specialties that the City needs from time to time.

Theoretically, the City could maintain a large staff of specialized attorneys to handle every contingency.  But the City does not have a constant need for all of these specialized services; it fluctuates. Most of the time these attorneys would be sitting in their offices throwing paper airplanes at each other but still drawing a salary. 

It is more economical for the City to use outside counsel to ramp up its legal expertise and resources as events warrant.  It gives the City flexibility, in other words.  And virtually every other entity that is frequently involved in litigation follows the same practice.

A Rorschach test for density

Take a look at this photo of Budapest from The Overhead Wire (republished with permission):

What's your gut reaction to it?

Do you see a place that is visually interesting, energizing, and socially, culturally and intellectually stimulating?

Or do you see congestion, overcrowding, noise, crime, and lack of privacy?

My guess is that you could accurately predict a person's stand on most land-use issues by his gut reaction to this picture.

This might also explain the dynamics of single-family neighborhood opposition to new density nearby.  Most single-family homeowners are highly risk-averse, which makes them anxious about dense development.  Some of these homeowners have a visceral distaste for density.  Others have an equally visceral, positive reaction to it.  You end up with one group that is anxious about home values and that dislikes density, and another group that is anxious about home values but likes density.  The first group intensely opposes the development, while the second (probably smaller) group is more ambivalent, even if it supports it on balance.  Presto!  Neighborhood opposition.

OK, nothing profound here.  I really just liked the picture.

The City wants to get into the parking business

Condo builders are apparently reluctant to build or operate public parking downtown, so Councilmember McCracken wants the City to take up the slack.  He claims it will be "cheaper" for the City to build public parking:

McCracken believes they could be financially beneficial for the city because it could lower construction costs by issuing low-interest debt and wouldn't have to pay property taxes on the finished product. The city also would be willing to accept lower profit margins than private developers.

This is pretty shaky accounting.  The City's loss of property taxes is part of the cost of operating a City-owned garage, regardless of whether it has its own budget entry.  This also ignores the opportunity cost:  if the City could sell a lot for a gazillion dollars, but instead builds a public garage on it, the lost loss of that gazillion dollars is a cost, too.

I'm also skeptical that these will generate enough revenue to cover the construction and operating costs.  Developers' land costs and property taxes are more or less fixed costs.  The cost to them of adding public parking is just the marginal construction cost.  That they don't think public parking will provide a profitable return on this capital investment is a reliable indicator that it is not.  This shouldn't really be a surprise, since much of the return from parking is captured by merchants, who benefit from the traffic.

Parking is a problem downtown, and I'm not trying to suggest that the City sit on its hands.  But we shouldn't go into this thinking that this will be anything other than a subsidy for downtown property owners and merchants, possibly a deep one.  We also need to recognize that this subsidy will fall most heavily on those without cars.

You can think of downtown as a complex ecosystem, with the different inhabitants in a mutually dependent relationship.  The condo builders need plenty of street-level retail to make their condos attractive to buyers.  The retailers need plenty of condo dwellers.  But they also need traffic from outside downtown, because the condo residents alone won't keep them in business.  It is a fantasy to think that buses will bring enough traffic downtown, at least anytime soon, so the downtown retailers need parking.  The problem is that the condo builders who could build the parking don't want to take the hit for the benefit of everyone else.  It's a classic free-rider problem.

The City can do some things fairly easily.  It can start by charging what the market will bear for existing parking, particularly street parking.  (The price should be set high enough so there is always some free curb space.)  This will maximize revenue and encourage those traveling downtown to consider alternative transportation.

Ideally, it would figure out some way of shifting the cost of new parking to downtown property owners.  Spending some of the density bonuses on parking would be a better use of the money than some of the others uses that have been proposed.  Developers would probably be more receptive to that use, since ultimately it will enhance the value of their property. 

Could the City create a public improvement district to fund parking?  The district would build the off-street parking and assess the owners. That would eliminate the free-riding problem, and eliminate the subsidy.  And if the City put the decision-making in the hands of the downtown merchants and property owners, it could reduce the risk of oversupplying parking -- presumably, downtown owners won't pay to build more parking than they need. 

I'm not a local government finance expert.  McCracken may have already considered and rejected this possibility.  But I'd like to hear that all options have been considered before the City launches into a risky, property-subsidizing enterprise.

P.S.  Shilli at Austinist has a similar take (although he appears to be more skeptical of the need for new parking).

Update on the fight over the McMansion ordinance in Central East Austin (updated)

Dee Copeland at Texas Realty Blog has a nice update on OCEAN's attempt to repeal the McMansion ordinance's minimum floor-to-area ratio for Central East Austin homes.  Quite predictably, OCEAN is getting pushback from the small lot owners who would be hurt by this change.

The opposition is being spearheaded by "Hollywood" Henderson.  You can read his "Dear Neighbor" letter/petition at Dee's blog.

Update:  City Council denied the amendment unanimously.