With no good options, City Council faces dilemma over CodeNext

There aren’t any good options facing the Austin City Council regarding CodeNext, and the best of those – advancing a citizen-led ordinance to the ballot – might conflict with state law.

That is the dilemma facing the council as the city continues public hearings on CodeNext, the initiative to rewrite Austin’s antiquated, unwieldy land-use and zoning rules.

We’ve previously noted that it would be preferable to leave the matter to the council because zoning and land-use rules impact all people and neighborhoods, specifying what kind of housing or other structures – single-family homes, apartments, row houses, retail space, parking garages or offices – can be built and where.

Ideally, that duty would fall to elected officials on the 10-1 council, who represent all geographic areas of the city and reflect Austin’s racial and ethnic diversity.

Moving the issue to the ballot shifts power over decision-making to voters in West and Central Austin, who dominate citywide elections with higher turnout than other areas. In establishing the 10-1 system, voters aimed to weaken that grip on the council.

At this point, however, we are far from ideal. Many residents have lost trust in the council’s handling of CodeNext. That is evident in the success of a citizen-led petition drive to move the matter to the ballot. Last week, the city clerk certified that the petition, with more than 31,000 signatures, met the legal threshold of 20,000 signatures from registered voters.

But even its fate is unclear. The petition’s ordinance that leaves CodeNext or other zoning decisions to voters faces legal hurdles that aren’t easily dismissed.

After Friday’s 6-4 vote not to adopt the ordinance — in a move that would have given voters the authority to decide zoning matters, such as CodeNext — two options remain: The council could vote to put the CodeNext ordinance on the November ballot, which would have to be done by Aug. 20; or kill it. Neither is perfect; both are politically loaded.

Given the stakes, the city would be wise to seek an opinion from the Texas attorney general’s office to establish some independence.

Consider what would happen if the council refuses to put the ordinance on the ballot based on legal prohibitions, especially from attorneys connected to the council. You can bet city council elections in November end up as proxies on CodeNext – not to mention a lawsuit promised by local attorney Fred Lewis, who helped spearhead the petition drive.

If the council votes to advance the ordinance to the ballot, knowing or ignoring its conflict with state law, that also would trigger a legal challenge if voters approved it. If voters rejected it, the divide between CodeNext supporters and opponents would widen, spilling onto other policy matters, which also would become proxies for CodeNext.

Both those avenues are a zero-sum game, pitting the rights of Austin citizens against the authority of elected officials to carry out their duties in a representative form of government.

In making their decision, council members should consider the following: The same charter that enables Austin’s 10-1 system of government guarantees citizens the right to petition their local government for a referendum. That right, based in the First Amendment, is considered sacrosanct and should not be cast aside without legitimate or moral cause.

They also should consider the Texas Local Government Code that stipulates that zoning regulations adopted under state law can be repealed by a charter election. The CodeNext ordinance would not be on the ballot as a charter election. It’s the next clause that requires legal interpretation.

It stipulates that cities can repeal zoning rules “on the initial adoption of zoning regulations by a municipality, the use of any referendum process that is authorized under the charter of the municipality for public protest of the adoption of an ordinance.”

That’s a mouthful that requires an unbiased legal expert, which is what some University of Texas faculty members went looking for, as the American-Statesman’s Philip Jankowski reported last week.

The expert, New York University law professor Clayton Gillette, said the CodeNext ordinance conflicts with Texas law. Austin lawyer Robert Heath found that the ordinance also would override portions of the city charter. Both things signal legal peril, if not before the election, then after.

With $8.2 million invested in developing three drafts of CodeNext and no good options, perhaps the best option is not found at the ballot box or on the dais.

It’s worth considering taking a break – shelving CodeNext until next year. That would help tamp down tensions and remove CodeNext from center stage as November elections approach. It would give the council time to study the lessons learned regarding CodeNext so that the public’s investment is not wasted.

More time – without unrealistic deadlines – would offer a chance to address the issues that have created a great divide over CodeNext, including density bonuses and other entitlements for developers; a lack of affordable and low-income housing and parking; and gentrification that continues to displace longtime residents. Time offers new City Manager Spencer Cronk an opportunity to put ideas on the table.

He and the council should prioritize the needs of people who already live here and manage their expectations regarding their quality of life. Solutions must include ways to meet Austin’s housing needs for future growth.

We’re not suggesting those are easy challenges. Answers aren’t likely to please everyone. But there is little chance of getting to a compromise in an environment in which public trust has all but evaporated.

Time spent wisely would give the council the best shot at restoring public trust and fixing the city’s zoning code.

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