About That CodeNEXT Petition ...
Monday ruling brings confusion, clarity
Austin may very well vote on CodeNEXT, but not yet. On Monday, Travis County District Judge Orlinda Naranjo ruled that the city must put the CodeNEXT petition on the upcoming November ballot. Which doesn't mean the proposed land use code will be voted on; first, residents must vote on whether or not they wish to vote on CodeNEXT – and all future comprehensive revisions to Austin's land development code.
The process, put into motion by Naranjo's ruling, is both long and complicated, but ultimately the ball has moved to the voters' court. This fall, Austinites will decide – via the ballot box – if they wish to implement both a waiting period and voter approval of any major land use code rewrites going forward. Then, if that two-part proposition passes, all LDC comprehensive revisions will require voter approval before implementation. Assuming City Council adopts a final form of CodeNEXT, and assuming that happens in 2019 (which, at this rate, is technically possible), the rewrite wouldn't go before voters until 2021.
According to attorney Fred Lewis, one of several plaintiffs in the case and co-author of the petition, the waiting period would go into effect once Council adopts the rewrite and extend until the June following the next election of council members (in November of 2020). Defending such a delay, Lewis noted that nothing in the petition's language would stop Council from making revisions to the current land use code, adopted in the Eighties. And the waiting period, he said, would allow the public to "get up to speed" on the proposal and give the city time to test pilot projects on the ground. (The city manager's office is currently organizing a working group of design, development, and technical professionals to test regulations proposed in CodeNEXT, as instructed by Council on June 28.)
The legality of the petition is contingent on whether or not state law allows residents to vote on zoning, aside from whether to have zoning in a city or whether to remove zoning from a city. The city's outside legal counsel has argued that zoning is considered inappropriate for the state's initiative and referendum process – the voter-led right to initiate legislation or repeal existing ordinances if Council refuses to act – due to its "mandatory procedures." Basically, because of zoning's technical nature and an assumed inability to present the full subject matter to voters, Texas law requires all zoning cases undergo public hearings by a city's Planning Commission and City Council, rendering it inappropriate for the initiative and referendum process. Lewis called the city's legal advice on zoning and initiatives "wrong" and insists only taxes and appropriations are exempt from the process.
And in true CodeNEXT fashion, the answers remain unclear. Naranjo's ruling was accompanied by a two-page letter, which offered "some of the Court's reasoning" for the ruling, including the detail that Texas courts are prohibited from rendering "advisory opinions," which happens when an order addresses "only a hypothetical injury." Essentially, facts must be "sufficiently developed" in order for a judge to rule.
Because CodeNEXT is unfinished (with Council's amendments still to come), Naranjo wrote that no one knows what the final version will entail, or if it'll even be passed. Therefore, it's too soon to rule on the city's two positions: 1) that the rewrite is a zoning ordinance; and 2) that it's impossible to untangle zoning from the code's non-zoning chapters, such as parking and drainage requirements. Naranjo concluded that, as it stands, the court cannot issue a judgment on the rewrite language or validity, and ordered the petition to be placed on the upcoming ballot. Following the ruling, a city spokesperson released a statement acknowledging Naranjo's decision, but continued: "It leaves unresolved questions about whether zoning is an appropriate subject for election."
We're guessing CodeNEXT hasn't seen the end of its legal battles.