Where does CodeNEXT go next?

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I was lucky enough to miss the CodeNEXT debate at Council last week. I was actually in Lafayette, La., at the Festival International, not so much for the music as the chance to meet and interview native speakers of Louisiana French/Creole for a documentary I’m making with my little brother. The preservation of regional languages and dialects and the benefits of bilingualism are two things I feel strongly about and plan to discuss more in the future.

Back to CodeNEXT…Council voted on Thursday about the way I would expect. The only CMs in favor of adopting the proposed ordinance put forward by anti-CodeNEXT petitioners are the four who are most firmly aligned with anti-density neighborhood associations: Kathie Tovo, Leslie Pool, Alison Alter and Ora Houston.

What were they voting on? It’s a little confusing. The language that 31,000 people signed on to is a proposed ordinance. That ordinance says that if and when Council adopts either CodeNEXT or any “comprehensive revision” of the land development code:

The new code will not go into effect until eight months following the next Council elections (June 1)

It must be ratified by voters via referendum

Assuming that the petition is valid under state law (a number of legal experts claim it is not), City Council has the option to do two things. It could adopt the ordinance, thereby subjected CodeNEXT, if and when it passes, to voter approval. Or it could put the proposed ordinance on the ballot this November, and if voters approved it, they would also get to take another vote in the future on whether CodeNEXT goes into effect.

Did you understand that? If you didn’t, then read it again very slowly.

So Council voted against (4-6) adopting the ordinance. The anti-CodeNEXT activists say that that Council is now obligated by the city charter to put the ordinance on the ballot. Others argue that state law clearly prohibits subjecting such zoning changes to the referendum process.

Right now it’s not clear what’s going to happen. Whatever decision Council takes on the matter, it’s a good bet that somebody is going to sue. That could be the anti-CodeNEXT groups suing to force the city to “let the people vote,” or it could be any number of groups in favor of land use reform (real estate interests, Evolve Austin, affordable housing orgs) suing to prevent what they argue is NIMBY obstructionism.

One piece of bad news for the neighborhood bloc is that they failed to win the support of Ann Kitchen, who is often a swing vote on development matters. As is often the case, Kitchen tried to stake out a compromise position, saying that she believed the ordinance was a violation of state law but that she empathized with the angst people feel about CodeNEXT. Some of her comments:

I cannot in good conscience vote to adopt this ordinance. I believe this petition ordinance violates state law and violates our city charter, which is our city’s constitution, and which I took an oath to uphold. The city attorneys, legal scholars, and the courts have clearly stated that under Texas law, zoning is not a proper subject for initiative in Texas.

I care deeply about the concerns, fears, and especially the lack of trust that I am hearing from some in our community. I believe there’s another way, another way to address these concerns, one that council can legally put in place and one that doesn’t require us to wait up to five years to fix our city’s problems. And as I’ve said before, I pledge to take the time to do this right with regard to the code, and I believe that means not rushing to adopt a code before it’s ready, and if the council adopts a code, taking the necessary time to put a new code in place, which includes testing periods, implementation, and allowing a clear process for amendments.

Otherwise, there weren’t too many comments from CMs about their thoughts on the petition. Jimmy Flannigan said he agreed that the ordinance violated state law and Alison Alter said she disagreed that that was the case. Tovo, apparently anticipating that Council would not vote to adopt the ordinance, said that she planned to bring forward a proposal to put the ordinance on the November ballot in the coming weeks. The mayor didn’t make any comments.

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