The City Council on Thursday voted against placing a petition ordinance on November’s ballot that would have asked Austin voters if they wanted to see CodeNext put to a public vote.
The vote sets up a likely legal challenge to the council’s action. Local attorney Fred Lewis, one of the leaders behind the petition that garnered more than 31,000 signatures, said after the vote that he would sue the city.
CodeNext is the ongoing effort to rewrite Austin’s land-use and zoning code for the first time in 34 years. The process has grown more contentious with each passing month.
“The council, a majority never wanted the public to vote on CodeNext,” Lewis said. “So we will go to court, and we will ask the court to respect the wishes of the voters and allow them to vote.”
The vote was 6-4, with Council Members Alison Alter, Ora Houston, Leslie Pool and Kathie Tovo against. Council Member Ellen Troxclair was absent from the meeting.
Adler, in extended remarks about the legality of the petition ordinance, said he could not in good faith have place the referendum on the ballot short of a court order.
“The easy thing to do here would be to put this on the ballot and walk away,” Adler said, “but that wouldn’t be right because it would be illegal. To me, that would be a denial to the oath of office I took. I wasn’t elected to do the easy thing; I was elected to do the hard thing and the right thing.”
Pool said it would be illegal to not put the petition ordinance on the ballot.
City Attorney Anne Morgan has told council members that Texas law prohibits referendum elections on zoning amendments. Likewise, legal advisers have told the council that the petition is flawed because it outlines an ordinance that would override conflicting portions of the Austin City Charter, which is not allowed.
However, the public can vote on something known as initial zoning, when a city sets up zoning laws. The question regarding the CodeNext petition ordinance now is whether CodeNext amounts to the repeal and replacement of existing zoning codes or whether it qualifies as a massive amendment.
Houston had put a resolution on the agenda that would have placed the petition ordinance, which calls for public votes on any broad rewrite of Austin’s zoning laws but is specifically aimed at CodeNext, on the ballot. Before the council could vote on her resolution, however, Adler offered another resolution that did the opposite.
Houston, the council’s lone African-American, said the right to vote is something her community holds dear.
“I have personally been in situations where the law has disenfranchised me of that right,” Houston said. “I never want to be in that position (to vote for something) that legally might be the right thing to do, but morally it is the wrong thing to do.”
The vote mirrored several previous votes on CodeNext issues and could be as a preview of how a final vote might go this summer. On Tuesday, the council will conduct its first public hearing regarding CodeNext.