What could be better than arguing about CodeNEXT for a few more months? Arguing about CodeNEXT for a few more years, of course!
That would be the likely effect of an anti-CodeNEXT petition currently being circulated by IndyAustin, Community Not Commodity, and other groups, with a goal of acquiring the 20,000 signatures of registered voters sufficient to force a May election. (According to a report in the Austin Bulldog, organizers say they’re on track to meet their goal.)
The land development code revision known as CodeNEXT is currently in draft form, scheduled to go to City Council for potential approval in April – although that deadline (like earlier ones) might be extended. Nevertheless, if the petitioners succeed in forcing a May 5 election – as the only item to appear on a ballot, with an $800,000 to $1 million price tag to the city – and manage to win voters’ approval, the outcome could block any changes in the development code for two to four years.
Asked for his opinion on the potential effect of the petition, attorney Buck Wood, experienced in election law, called it “legally questionable” and “policy-wise a dubious idea,” although he cautioned that he has not studied the matter in detail. “It just seems to me the way they’ve tried to do this is not going to work.”
The petition (“For an Austin Ordinance Requiring Both a Waiting Period and Voter Approval Before CodeNEXT or Comprehensive Land Development Revisions Become Effective”) contains four provisions.
It would:
1) Forbid any “comprehensive” changes in the land use code until the June following the next city elections (i.e., June 2019, presuming Council manages to pass a version of CodeNEXT before November);
2) Also forbid any comprehensive changes in the code prior to the following election (November 2019, perhaps), in which the code “in its entirety” would be put to a vote;
3) Override any conflicting city charter provisions or ordinances, and;
4) Allow “severability” of any provisions found to be illegal, maintaining the remainder.
Although billed as an ordinance, by restricting City Council’s authority and overriding the charter, the petition would appear to require a charter amendment. Not mentioned in the petition is that charter elections can occur only every two years, potentially meaning a freeze of (undefined) “comprehensive” changes in the code until November of 2021.
“If you wanted to repeal something that Council has done,” said Wood, “you could certainly design something that would do that. But to freeze changes indefinitely for X number of years is fraught with legal and policy problems. The likely effect would be a lot of litigation.”
People directly involved in the work on CodeNEXT – whether or not they support its current form – expressed doubts about the petition campaign. Jim Duncan, longtime city planner and a member of the Code Advisory Group, described the ongoing revisions as “much more complicated than a yes or no.” He’s not happy with the state of the current drafts, and understands that there is a “high degree of frustration” about the process, which he called “the most polarizing I have ever seen.” He said that while he wouldn’t mind slowing down – “one more year if we got it right doesn’t bother me” – there would “obviously be problems if we couldn’t change anything.” He does emphasize a need for “more legitimate citizen involvement” in the coming weeks.
Planning Commissioner Trinity White said the code “is a really complicated matter and I understand why people are nervous about it,” but an “up-or-down vote … would oversimplify something really complex.” She said the current process allows Council and the Planning Commission “a chance to dissect the different parts and understand the nuance.” She added that people are very concerned about affordability (“especially in my District 1”), but that Texas law makes it impossible to mandate affordable housing, and we can’t expect the code to solve that problem. “We have very few affordability tools related to the code, so we have to look for other ways, like bond measures for affordable housing.”
The harshest comments came from longtime commissioner Dave Sullivan, who also serves on the Code Advisory Group. He said he objects to the petition campaign as a matter of principle, on both policy and political grounds. While he continues to press for revisions in the current code drafts, he asked, “What constitutes a ‘comprehensive’ change? And since when do we put thousand-page ordinances up for a vote?”
Sullivan bluntly accused the petition campaigners – who boast of their previous support for a 10-1 Council – of hypocrisy, and of attempting to undermine real, representative democracy. “I tell people, if you want the affluent white people in West Austin, and the districts with the highest turnout, to make the decision, sign the petition – because those will be the same voters who used to elect all our council members. But if you want real democracy, let the representative 10-1 Council make the decision.
“The petition campaign just shows a lack of concern for people who don’t have a voice,” Sullivan concluded. “We elected the 10-1 City Council members to represent the whole city, and they also appoint the commissioners. Citizens should put trust in the people who they elect to study this stuff.”
This article appears in January 5 • 2018.
