Now that a district judge has ordered that CodeNext be on the November ballot, Austin residents will get an up or down vote on the comprehensive land-use and zoning code that will govern for decades what can be built in Austin and where, right?
That is incorrect.
Though it is a widely held view, no doubt the intention behind the CodeNext ordinance petition, it is not what will be on the Nov. 6 ballot.
Instead, voters will decide whether CodeNext will require voter approval to go into effect, and if there should be a wait period — which could be one to three years — before it could take effect. It’s a distinction worth noting.
We urge voters to take time to understand the entire CodeNext question that will appear on the ballot. That’s a tall order, given the many other matters on the ballot, including six City Council races, a $925 million bond package and city charter amendments. Nonetheless, clarity regarding the CodeNext petition is paramount, given the political stakes and potential consequences.
Depending on the outcome of the election and the legal challenges that might follow, the city could find itself in a political box in which it could not pass a comprehensive land-use code without risking – at least for a time – environmental and water quality protections.
Certainly, the ruling by State District Judge Orlinda Naranjo last week reinforced the rights of Austin residents to petition their local government for a ballot initiative, giving voters a say on CodeNext or other zoning matters. But that limited victory might be short-lived.
The judge’s order does not settle the larger potential sticking point of whether CodeNext, as a finished product, could legally be put on the ballot, considering a state law that prevents votes on zoning in certain circumstances.
Yes, it is complicated. But Naranjo got it right in our view, saying that the primary challenges brought by the city to keep the CodeNext petition off the ballot “are not ripe.”
As she noted, CodeNext is a draft that has not been approved by the council, so essentially there is no CodeNext.
And, even if a finished product emerges, it must pass the City Council — not as easy as it sounds, given Mayor Steve Adler’s pledge not to advance it with anything less than eight votes. In that case, CodeNext still would remain a draft and not ripe.
Only when there is a finished product passed by the council and sent to voters for approval would the issue be suitable for a legal challenge.
Expect such a legal challenge from the city should voters in November pass the CodeNext petition that covers any other comprehensive zoning revision. A challenge would address the issue Naranjo said was premature at this time: whether the finished product violates state law that zoning can’t be subjected to the initiative process, unless the initiative asks whether to have zoning requirements.
The ballot petition’s second — but equally important — question to voters is whether a waiting period is required before CodeNext or nonzoning provisions could go into effect.
This, too, is a complex question, because the petition contains a clause permitting the CodeNext question to be severed from nonzoning provisions. Provisions not related to zoning are a huge part of CodeNext, comprising environmental protections, affordable housing initiatives, transportation and parking policies and water quality and utility requirements, among other things.
Consider that CodeNext’s third draft is 44.4 percent zoning — or 695 pages out of 1,566 pages. The rest are nonzoning provisions.
While the city is likely to bring legal challenges against both questions if voters approve the petition, the outcome could be very different for each because of the severability clause.
An example would be if a court rules that CodeNext cannot be put up for a vote, but waiting periods for nonzoning provisions could be on the ballot. Imagine how that would work, with a zoning code that could go into effect almost immediately, but provisions governing watershed and parking requirements, or environmental protections being subjected to a waiting period of several years.
Another scenario: CodeNext could be declared to violate state law, but wait periods for it, and nonzoning provisions could be upheld. That would delay any major overhaul of zoning for one to three years.
A third outcome: If all provisions in the petition are found legal, the council’s authority to craft a comprehensive zoning code would be greatly weakened and subject to popular will, which could thwart the city’s ability to design a comprehensive code to address growth, transportation and housing challenges.
In other words, there are many unknowns.
What is knowable is how the city ended up in this predicament.
Clearly, city officials bungled the rollout and handling of CodeNext, spending too much time on a listening tour without a blueprint and too little time soliciting public input once a map and drafts were available.
The council triggered public panic and frustration by initially setting unrealistic timelines to pass a new land-use code and overselling CodeNext as a fix for Austin’s affordable housing crisis and rapid displacement of lower-income families, particularly African-Americans and Latinos. With its entitlements to developers to increase density without the trade-offs in the current code, CodeNext created deep divisions and public mistrust.
As we’ve noted, the city should shelve CodeNext — at least until after November elections. After a cooling-off period, start over with an emphasis on transparency and rebuilding public trust.