What Is Happening to Neighborhood Planning?
Will neighborhood involvement become a spectator sport with power shifted from local to the State of Texas?
History provides insights
In the beginning, zoning was pretty basic. It’s been around about 110 years with the big Supreme Court case making it ok for adding zoning restrictions. Now, the Supreme Court is federal and so it authorized states to have the ability to use zoning and the states gave that authorization to the incorporated cities and counties. The gist of having zoning was to protect property values which happened by providing certainty or stability in a location. Remember there was a time when a single family homes and apartments could be subject to loud, noisy uses like a factory which was happening during the 1900s.
Fast forward to today, and zoning has other purposes too such as “social justice” and “equity” often these aspirational goals first get introduced with a comprehensive or general plan that are referenced to goals outlined by think tanks and such. So as we get into the second month of active State of Texas Zoning, questions are coming up about Neighborhood involvement at the local level and how it relates to planning.
Planning is not what SB840 is about - it is about adding housing now as quickly as possible and to get “neighborhood planning” to square up with the requirements, namely infrastructure. So is this putting the cart before the horse? I’d say yes.
Let’s start with the people since “planning” seems to revolve around that very subject. How many people, what kind of people, what do they do and what do they need?
This lets a city allocate “resources” to meet their planning objectives. Now, these ideas may not appeal to those who actually live there now and that is part of the First Amendment (little civics here) to “petition” the government. So do Neighbor Groups have a say when it comes to a new project under new State of Texas Zoning. If the developer is building to SB, the answer is a clear ‘no.” There is no petition process because it was granted “by right” by State of Texas.
Next question may be: will developers ask for more? That’s a possibility. Why would the ever need to ask for more? Well, in the case of building height - that is likely the one development standard that at 45 feet “by right” by the State of Texas vs. the height that was granted by the city - the greater of the two - that’s where we may see some requests for a variance, not a rezoning but a way to get more height for a specific project. And if they do, I wonder how the cities will handle this. Will it set off the old-school process of notification? Will neighbors get to petition then? That is yet to be seen.
It is still early folks so we’ll have to look for a few zoning cases. If you hear of any in your area, reach out please and give me the heads up.
Given the magnitude of SB, I see a shift in how Neighbors work going forward. My primary concern is lack of notice and is a big reason I came up with TXZoning.com. We need a place to talk to those who don’t know about it or zoning; I’d like to help keep those unaware from being blind sighted by the changes in their neighborhoods. With your willingness to talk to your clients, neighbors and such, I think we can.
No Notice!
After decades of being conditioned to a specific planning and zoning process, we’re all in reboot mode. Sure, I can get the process has all kinds of flaws and elected city officials didn’t always treat those who showed up with the kind of care expected. But at least there was a time to process what would be coming.
SB doesn’t require notice. City of Plano is adding a signage requirement just to help folks know it is “them (State of Texas), not us (City of Plano) doing this stuff.
What I’ll miss is the way people would talk about their neighborhood. Genuinely describe what it means to them and why they showed up to act (participate) in the name of “protecting the neighborhood’s character.” I’ll also miss how developers’ consultants would try to work through a negotiation and even the way city staff would given their stamp of endorsement or not - and why!
Throughout the process, behind the scene, neighbors would work to position their position- they’d write letters, emails and call. And, it turns out, so would “advocacy groups” who could hold sway as well for their community within the city. Yes it felt like theater and buy-a-position/vote but it was the process. With SB840, the push back or usher it forward to see if “it makes it” through is now gone. Why? Because SB840 offers “by right” entitlements for building housing - for rent or for sale units that meet the requirements.
Will there still be hearing? I’d say yes but for smaller cases, not the big ones. On that note, let’s talk HB24.
HB 24 - all of Texas
Of the bills TXzoning is working through currently, HB24 is the only one that hits the State, not just cities of a certain size.
HB24 makes it possible for a city to change its zoning, its map or a combination if the change “adds residential use", it can do so by giving notice is the local paper and on their website. HB24 also changes the rules for the developer or owner going through a rezoning process. Before, the process involved mailing notices and hoping few would appear at the hearing (kinda like the traffic ticket you decide to fight and hope there is a “no show” on the appoitned day). But, as is life, often people care to show up and say a few words.
With HB24, it is number of people who need to show up and say a few words that is another big change. It will now take three (3) times, or 60%, of neighbors to get together and win over 75% of the decision makers. If the proposed project does not involve housing, the usual 20% rule still holds. So we could see “cases”but not like what we’ve seen in the past. For SB840 cities, your requirements are such that the rules are baked in to “yes” for development by right. For non SB840 cities you can still go to bat against the proposed project but you’ll need 3x the people in tow.
What Becomes of Neighborhood Planning?
In some ways, the cities have built their processes for “amending” a future land use map on a Neighborhood Plan, such is the case for the City of Austin. While these mini ordinances show details most people don’t know even exist - and even sometimes can’t be clearly interpreted - they have a place in the zoning for now. Will SB840 impact these? I’d say yes because if there is an agreement that excludes apartments or for sale residential units, the State will trump.
In City of Dallas, with its myriad of Planned Developments, the Developer Agreements reflects specific zoning restrictions for that “PD” and stood as an agreement between the two entities. Nearby Neighborhood Groups would galvanize - or not - depending upon the project being proposed.
SB840 has taken a lot of the oxygen out of the room.
Recently, the highly controversial “Pepper Square” project reflected the tension between elected city council members and their constituents who showed up - some for the project but an overwhelming number who were against the project.
In the end, city council decided to side with the project because it would “add more housing on a corridor” which was part of their mandate with ForwardDallas, their most recent comprehensive plan.
Finally, what’s going to happen with “comprehensive planning” and the notion of “Future Land Use” in all this? Well Austin just announced they plan to spend $3 million dollars on a new plan to show in 2027. Here’s my source (link) and for the record, this was written August 28th. The council knew SB840 was active in just 3 days so why no mention of it? Instead, this is the quote that makes me realize, maybe they don’t know we know...it could be game over for this mindset:
“This process is rooted in listening and the Planning Department is ready to reach out across the community to make it easy for Austinites to weigh in,” Planning Director Lauren Middleton-Pratt said in a statement. “We want to make sure everyone’s voice counts, especially the ones that haven’t always been heard. That’s how we build a plan that truly reflects all of Austin.”
Why do I think this mindset is on the verge of changing? Because people are going to figure out the SB840 impact not only ratchets up density now but this new upzoning will reflect in the comprehensive plan. Let’s not forget, some cities like City of Dallas are applying SB840 CITYWIDE, not just in “commercial zones.” City of Austin is not applying SB840 that way but if it has to ever…we’ll have much to talk about.
“Leigh, this sounds big, can you give me some examples”
It is true - this is the largest transfer of property rights in State of Texas history as far as I can see. And yes, we have examples of big, big zoning cases that could possibly avoid any public scrutiny. The following are three examples where I cite the new bill and how the case would be presented today:
City of Austin’s long running rezoning case involved rezoning the city under CodeNext and its demise in 2022 (link) - HB24 would be applicable today to present a new zoning code using “more residential” for its justification; it could potentially still hit the ballot but the framing of the new zoning code in light of SB840 really changes the baseline conditions.
City of Dallas, the recent PepperSquare (link to the story of how neighbors were going to oppose the proposed project using ForwardDallas) - SB840 would be used and likely create an even more dense project as written in today’s post…just read on.
City of Fort Worth, a data center proposed project (link) - HB24 (20% rule) would still apply but as this and Pepper Square show, the local councils, even those for a specific “district” within the city have been siding with developers. In this case, the money the project will bring is highlighted. So again, what happens to the single family homes now within say 1,400 feet of a data center as far as reduced valuations? It does seem possible doesn’t it?
To refresh my readers about the process, something that has not been part of Zonability Reports because, as I’d often say, “there is the property, the rules and then the process.” Zonability is helping get you started on the rules as applicable to the property so its potential can be discovered. However, the process for rezoning, for instance, is no sure thing. Lots can happen when going through it and nearby neighbors were often active in either endorsing or squashing a proposed project.
The process involved a city planning commission or city council meeting where the city presented the proposed project (case number 123) and gave their blessing - or not. Then there would be time for the “neighbors” and those who wanted to express their support or not “for 3 minutes” would come to the podium. After the last one spoke, the next act of the 3-part play began with the city planning commission or city council going back and forth about the pros/cons. Finally a decision was rendered. City council was the more influential of the governing bodies so even if a decision was made at the planning commissioner level, it was the city council that had the weigh-in vote.
So to wrap up, post-September 1 in Texas, what happens? In the cities that must oblige to SB840 (see our Resources page), the products built under that new zoning will not need any notice because they are “by right.” Neighborhood Groups may figure out something is up, as they often do by just observing changes in their neighborhood such as grading site, or stripping a building down to its studs. There is just something about construction activity in the “pre” stage that has a certain rhythm and sound. Keep your eyes open and you’ll see.
Some proposed projects may get rejected for the myriad of “exceptions” that cities still control such as stormwater and the costs to meet requirements to supply sufficient power and water may mean some proposed projects just don’t “pencil out.”.
Does SB840 mark the end of Neighborhood Planning? I’d say yes with those Neighborhoods with Historic Districts remaining viable. Why? Because SB840/SB2477 do not apply in Historic Districts.
However, for the rest of the city areas not protected by Historic Districts, the impact of the bill with its “by right” permissions makes the value of planning go away. You’ll still see the illusion of “comprehensive planning” but that, I expect, will come to an end for SB cities.
While there were reports the Neighborhood Group wanted to challenge the city council’s entitlement decision, the passage of SB840 changed their minds on spending the time and money.
It is a defining moment in Texas zoning in my opinion - the will of the people vs. those elected and then a power play that changes the game yet again creating a different power structure from the State.
Pepper Square will get redeveloped with housing. From earlier this year (before SB840), the entitlements granted by the City Council for rezoning allowed for an 11 to 12-story building. The original zoning was no where near this height but the council felt it appropriate for the location. Now, the reality is the developer may only go 5 to 6 stories for phase 1 and 8 stories for phase 2 (source is Dallas News article from late August (link). Why the lower height? Building taller really does cost more. It is worth noting that had the developer waited until after SB840 went into effect, there would be no Pepper Square story if the proposed project played by SB840 rules.
Under SB840, height would have been the greater of 45 feet or the original zoning, CR- Community Retail District - at 54 feet or 4 stories. That is lower than what was gained going through rezoning, right? Next, density under SB840. For a no-negotiation SB840 style project on a 15.5 acre site at “unlimited” density, the article says the developer thought up to 1,900 units would have worked. This is how SB840 gets translated using in this city’s case, density of “unlimited” which is the city’s highest under SB840. This is more than double what they plan to build as granted with their entitlements for 868 units during the Pepper Square case. Remember this: the neighborhood had the right to oppose the developer because the developer - at that time - was asking for a rezoning.
Under SB840, no such action would be required.
Ending on a positive note
It was uplifting for me to read Matt Bach, one of Pepper Square leaders, as saying, ““The community is much more connected, aligned and willing to take on issues that we feel threaten neighborhoods,” he said. “We’re a bit of a force now at City Hall.”
So maybe Neighborhood Planning isn’t the thing anymore, it is Neighbor Alliances developed to revive the spirit of why guarding or cherishing a neighborhood’s character mattered in the first place and figuring out how to make that last. Will Historic Districts become the next big thing?
