The Myth About the Inclusionary Zoning Ban in Texas

Another title for this post could be: "What you have been told about inclusionary zoning in Texas is wrong."

When it comes to generating affordable housing opportunities for families, inclusionary zoning has been an important and effective local tool, utilized in more than 400 local jurisdictions around the country. Inclusionary zoning requires the inclusion of a certain percentage of affordable housing units (typically 10-15%) in new market rate developments. Montgomery County, Maryland's inclusionary zoning program has been especially notable, generating more than 12,500 affordable housing units.

But whenever inclusionary zoning is brought up in Austin at the City Council or other policy forums, the discussion is shut down on the grounds that all inclusionary zoning is illegal in Texas. This is a misconception. In fact, the only type of inclusionary zoning that the Texas Legislature has banned is for homeownership units, and even this ban has several notable exceptions.

The Texas statute governing inclusionary zoning reads as follows:

Texas Local Government Code, Section 214.905. PROHIBITION OF CERTAIN MUNICIPAL REQUIREMENTS REGARDING SALES OF HOUSING UNITS OR RESIDENTIAL LOTS. 

(a) A municipality may not adopt a requirement in any form, including through an ordinance or regulation or as a condition for granting a building permit, that establishes a maximum sales price for a privately produced housing unit or residential building lot (emphasis added).  

What is clear under this statute is that a city in Texas cannot enact an inclusionary zoning ordinance impacting homeownership units, such as requiring that 10% of homes built in a new subdivision be sold below a certain sales price to low-income families—unless an exception in 214.905 is met. What is also clear from the language above is that the inclusionary zoning ban does not extend to rental housing.

Also, importantly, Section 214.905 goes on to provide several notable exceptions to the ban on inclusionary zoning for homeownership units, including land in a homestead preservation district and density bonus programs:

(b) This section does not affect any authority of a municipality to:

(1) create or implement an incentive, contract commitment, density bonus, or other voluntary program designed to increase the supply of moderate or lower-cost housing units; or
(2) adopt a requirement applicable to an area served under the provisions of Chapter 373A, Local Government Code, which authorizes homestead preservation districts, if such chapter is created by an act of the legislature.  

With Austin's growing affordable housing crisis, we need to be using all of the tools at our disposal to preserve and create affordable housing opportunities for low- and middle-income families. Inclusionary zoning is one of those tools we should be using now.

Austin's Proposed Cuts to Public Pools

It was disheartening to hear that the City of Austin's Parks and Recreation Department is once again considering closing our city swimming pools and cutting back pool hours. Public pools are one of the best public services that the City can provide for Austin children. On top of that, the pool closures are targeting East Austin, with its historic disparities in access to public services.

I blogged about the issue of public pool access back in June 2013. Northeast Austin (north of 290), with its very high concentrations of low-income households already has zero public pools. If the City moves forward with its plan to close the Mabel Davis pool, Southeast Austin (the whole area south of Riverside all the way past William Cannon—likewise fairly poor) will have only one public pool. Meanwhile wealthier areas of the city have year-round access to public pools.

Even though Austin has fared quite well in the annual Trust for Public Land survey for public pool access, we continue to fall in the rankings.  In 2011, we ranked #11 amongst U.S. cities in terms of public pools per capita. Now we are at #16.  The proposed cuts, if they go through, will push us farther down the list.

Our population is booming (Austin was the fastest growing city last year), our tax base is exploding, and the summers are still sweltering. Shouldn't the City be figuring out ways to expand access to public pools?  As the Council dives into the City budget this summer, let's hope the City paddles away from its public pool closure plans.