A legal memo from Austin’s city attorney indicates that legal staff believe an ongoing effort by some residents to upend CodeNext through a petition is not valid.
A Feb. 28 memo from Austin City Attorney Anne Morgan that was forwarded to the City Council states that the city had hired an outside attorney to examine the legality of the petition, which calls for a voter referendum on whether the public should get to vote on all large-scale changes to zoning law.
The organizations behind the petition drive hope to place that question before voters in November. If the measure passes, a specific referendum on CodeNext would be scheduled next year.
The memo, which was first reported by the Austin Monitor, included recommendations from Austin attorney Robert Heath.
“In short, his determination is that council is neither required nor authorized to call an election on the petition because Texas courts have held that zoning is not a permissible subject within the scope of the initiative and referendum process,” Morgan said in the memo.
Heath’s memo also states that the petition is flawed because it outlines an ordinance that would override conflicting portions of the Austin City Charter. Ordinances cannot trump the charter, Heath said.
One of the PACs behind the petition, IndyAustin, recently announced that it was nearing its goal of gathering 28,000 signatures. The group’s leader, Linda Curtis, said on Monday that they already have more than 24,000 signed petitions. About 20,000 signatures are needed to trigger an election.
The PAC responded Thursday to the existence of the city attorney’s memo.
“This is an extraordinary … dumb move by City Legal, a department that has long served as a rat’s nest of impervious cover (pun intended) for the real estate lobby,” the group said in an email. “Their missive about stopping this petition before placement on the ballot signals that they know CodeNext is too unpopular with Austinites!”
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 problems, including a lack of low-income housing as well as gentrification and traffic congestion.
Opponents of CodeNext believe that it will destroy neighborhood character by encouraging redevelopment and demolitions of homes. Proponents believe that CodeNext will make housing cheaper by making it easier to build in the city.
If the petition makes its way to City Council members, Heath recommended they reject it as invalid, though he noted the petitioners may respond by taking legal action.
Or, if the council allows the election and voters approve the measure, the council could challenge the validity of the election. However, Heath noted that that option was fraught with legal “pitfalls.”
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