A petition effort to put CodeNext on the ballot is one step closer to achieving that goal after the Austin city clerk’s office on Monday certified the petition.
Its validation could be the preamble for a bitter fight between the neighborhood preservationists who want CodeNext killed and the Austin City Council, which has been told by outside legal counsel that the petition is invalid.
Monday’s announcement showed that the anti-CodeNext political action committees behind the petition were successful in gathering more than 20,000 signatures from registered Austin voters who want a chance to decide on large-scale rewrites to the city’s land-use code.
“We are very gratified,” said local attorney Fred Lewis, who heads the anti-CodeNext group Community Not Commodity. “It took a lot of work. There were petitions signed in every part of the city. We are very proud of that.”
The effort began in August when IndyAustin, a PAC with financial backing from a billboard company and led by a Bastrop resident Linda Curtis, announced the petition. About the same time, Lewis created a PAC to support the effort.
Since then, the groups have gathered more than 31,000 signatures on the petition, the clerk’s office said. Signatures from 5 percent of the electorate — about 20,000 people — are needed to trigger a referendum.
The city clerk’s office certified the petition after examining 25 percent of the signatures. The office determined that of the 7,766 signatures in the sample, 6,544 were current Austin voters. Most of the disqualified signatures were duplicates or from people not on voter rolls, the clerk’s office said.
CodeNext is the city’s attempt to implement the recommendations of the 2012 Imagine Austin comprehensive plan by revising what type of development can go where. The effort aims to address many of Austin’s land-use problems, including a lack of low-income housing, gentrification and traffic congestion.
Supporters of CodeNext see it as a tool to increase low-income housing and a way to encourage housing density where appropriate. Critics say it could lead to the destruction of Austin neighborhoods and could end up being a giveaway to developers.
Supporters of the petition have said that putting CodeNext on the ballot would allow residents to help steer the direction of the city’s largest land-use rewrite in more than 30 years.
Those against the petition say it returns an outsized voice to West Austin and Central Austin residents who historically turn out at the polls in far greater numbers than those in other parts of the city. They also question how a regular Austin voter would be able to make an informed decision on a proposed code that is more than 1,500 pages long.
“Putting it to a vote has always been a transparent attempt to kill it,” said Josiah Stevenson, a member of the urbanist group AURA’s board. “It is easy to put out oversimplicized propaganda against it. There is a reason we elect people to represent whose full-time job is to examine policy. Most of us don’t have the time or energy to spend a full-time schedule analyzing our policy.”
An analysis of the petition signatures showed that more were gathered from residents of Central Austin’s District 9 and West Austin’s District 10 than from those in any other district. The fewest signatures came from District 6, the farthest from the city’s center, and District 4, one of the Austin’s poorest districts.
The City Council will have until Aug. 20 to place the ordinance the petition proposes on the ballot. The council also could adopt it outright and avoid an election. Lewis said he would prefer the latter.
But questions about the legality of the petition’s ordinance remain. An outside legal counsel for the city has said the ordinance cannot be adopted because state law prevents votes on zoning. Attorney Robert Heath also found that it would override portions of the city charter. Ordinances cannot trump the charter, Heath said.
To get an unbiased opinion from a local government law expert outside of Austin, some faculty members at the University of Texas School of Law reached out to New York University law professor Clayton Gillette about the petition. Gillette said the ordinance conflicts with Texas law.
“Zoning issues for good reason are exempted from initiate (petition) process even when the availability of the initiative process is broadly construed,” Gillette told the American-Statesman. “This is a subject matter in which you want centralized decision-making because what one group wants will affect what another group wants. If you have proposals and counterproposals, it will be a mess.”
Gillette said he has spoken to Mayor Steve Adler about his opinion of the petition.
Rejecting the petition based on legal opinion is an unenviable position council members — several of whom are up for election this year — could face. Lewis has already said he would sue the city if the petition is not placed on the ballot.
The City Council is “bound not to do something that would be illegal for the city to do,” said Stevenson, with AURA. “But the position that it puts them in is that they have to tell the thousands of people who signed this ‘no,’ and reject something that (31,000) people signed.”