Jeff Jack was angry.
It was a recent Wednesday night at Austin Energy’s Barton Springs Road headquarters, and the Austin Neighborhoods Council’s latest meeting on CodeNext was coming to an end.
“The train is running full blast, and there is only one way to stop it,” Jack told the group of about 50. That runaway train, in his view, is CodeNext, the massive rewrite of the city’s rules about what kind of development can go where. And the air brakes, critics hope, is their petition drive to give voters the power to reject CodeNext.
Jack and groups closely affiliated with the Austin Neighborhoods Council, such as Community Not Commodity, have won some major concessions as CodeNext has evolved in the past year. Most recently, in the third draft of CodeNext released last month, staffers removed a broad upzoning of Central City neighborhoods that had been in the second draft, focusing on milder changes to promote more housing units and other growth along major road corridors.
Still, the opposition to CodeNext has grown from compromise to scorched earth.
Derailing the $8.5 million project has emerged as the only acceptable outcome for many critics of the land use code rewrite, which was undertaken as a broad effort to increase housing density in hopes of reducing housing prices, among many other lofty goals.
Opponents are now focused on gathering enough petition signatures to force a November referendum on whether voters should get to approve major zoning plan changes. If voters approve that measure, CodeNext itself would go on the ballot sometime next year.
As Jack rallied the group to gather more signatures, talk turned to more drastic measures.
“We all have to flood City Hall,” Daniel Llanes, a performance artist and East Austin activist, said at the same meeting. “It may come down to a moment where we have to resort to civil disobedience.”
Error in code riles critics
The critics’ intensity against CodeNext is fueled, in no small part, by a distrust of City Hall.
When the third draft of CodeNext was released Feb. 12, the latest version appeared to be a victory for neighborhood preservationists. Gone were the provisions from the second draft that would have allowed for three housing units per lot in many Central Austin neighborhoods. Instead, CodeNext 3.0 gave neighborhoods like Bouldin Creek, Travis Heights and Brentwood the closest approximation of the zoning they currently have.
But within hours of the draft’s release to the public, many neighborhood activists pounced on a section they interpreted as a stealthy way to drastically increase density in those neighborhoods.
That classification, known as R2C, limits the capacity on a single lot to two housing units, such as a duplex or a house and a garage apartment. The same limit is already applied to most of these neighborhoods’ current zoning classification, SF-3.
But a part of the latest draft code indicates that lots of 7,000 square feet or more could be split into two smaller lots, one for each side of a duplex or two attached single-family homes. On those two smaller lots, the property owner could then add another housing unit to each side.
So in theory, a developer could demolish a single-family home on a 7,000-square-foot lot, build a duplex and add two garage apartments. The site would go from one dwelling to four.
Planning and Zoning Director Greg Guernsey was peppered with questions about this issue at the recent Austin Neighborhoods Council meeting on CodeNext. He told the crowd it was an error for that measure to have been included in the code. He said it would be deleted.
Days later, Mike Lavigne, a spokesman for the anti-CodeNext group Community Not Commodity, wasn’t buying it.
“It shows that they don’t know what is in their draft, and if it wasn’t for us, this would go unedited,” Lavigne said.
CodeNext spokeswoman Alina Carnahan said the staff will be releasing corrections to errors as the process moves forward. It was unclear how that particular error got added to the draft, but Carnahan said there was no intention behind it.
Even with that correction, neighborhood preservationists remain up in arms over relaxations to rules regarding parking requirements and the construction of accessory dwelling units on lots with houses that are 10 years or older.
Will voters remember CodeNext?
Delays caused by the creation of the third draft have led the staff to abandon the original timeline for City Council approval of CodeNext in April. Now the required recommendation from the Planning Commission is not expected until at least May, sending the code to the council in late May or June.
That timing — and the effort to put a voter referendum on the November ballot affecting CodeNext — could result in the issue looming large as Mayor Steve Adler and five City Council members campaign for re-election this fall.
“That is something that our elected officials are ultimately going to have to decide, whether they want to fall on their sword for this one,” Lavigne said. “If they pass this (CodeNext) in its current state, the electoral consequences will be catastrophic.”
Adler’s main challenger so far, former City Council Member Laura Morrison, has already announced that she is against CodeNext unless it benefits “all of Austin,” a virtual impossibility given how subjective that measuring stick is. Morrison was at the Austin Neighborhoods Council meeting and flyers for her campaign had been placed under each seat.
Also in attendance was City Council Member Leslie Pool, who is widely seen as a “no” vote on CodeNext.
Council Member Ora Houston also appears a virtual lock for a “no” vote. Last week, in announcing a March 22 proclamation to remember the racial inequity caused by the city’s 1928 master plan, Houston, the council’s only African-American member, compared CodeNext to the infamous master plan that segregated Austin.
“As proposed, CodeNext will accelerate, amplify and increase the displacement of individuals and the transfer of their residences and land,” Houston said. “The major impact of both plans is the same: Minorities and the less affluent lose their property and homes today and their opportunity to build wealth for tomorrow.”
But even with a successful petition appearing more likely — the effort’s chief organizer, Bastrop resident Linda Curtis, said this week she has more than 24,000 signatures and aims to file the petition March 22 — not everyone sees CodeNext as a political issue that could threaten City Council members’ re-election campaigns.
Mark Littlefield, a lobbyist and local political strategist, said that since the release of the third draft, the fervor surrounding CodeNext from those not highly involved in activist groups has been all but silenced.
“This started as a battle between a couple hundred die-hard neighborhood activists and a couple hundred die-hard urban activists,” Littlefield said. “Then it grew to include hundreds, thousands of new people that cared about it one way or the other. Now it seems like it is back to the original hundred neighborhood preservationists and density advocates.”
City attorney argues CodeNext petition is invalid
Even if CodeNext opponents gather enough petition signatures to seek a voter referendum, the city’s attorneys are advising the City Council not to put the matter on the November ballot.
The city hired outside attorney Robert Heath 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.
“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,” Austin City Attorney Anne Morgan said in a Feb. 28 memo that was forwarded to the City Council.
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.
If the petition makes its way to council members, Heath recommended they reject it as invalid, though he noted the petitioners may respond by taking legal action.
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