In case you missed it, earlier this week the Texas State Supreme Court served perennial plaintiff Bill Aleshire a warm slice of humble pie:
Late Monday, the Texas Supreme Court rejected lawsuits – literally, requests for “writs of mandamus” – that would have required City Council to rewrite ballot language for one proposition directing an “efficiency audit” and another requiring a referendum for any comprehensive land-use code revision.
I’m not interested in explaining the technicalities of the court’s decision, mostly because I’m not clear on what they are. But I am interested to see what happens now that the initiatives are going forward with language that their supporters are less than stoked about.
The Efficiency Audit: Although supporters of the initiative –– an odd assortment of Republicans and anti-development liberals –– obviously weren’t happy with the language that Council approved, the final wording was nowhere near as negative as what was initially floated. Here’s what it says:
“Without using the existing internal City Auditor or existing independent external auditor, shall the City Code be amended to require an efficiency study of the City’s operational and fiscal performance performed by a third-party audit consultant, at an estimated cost of $1 million-$5 million?”
I could see it going either way. It will be interesting to see how aggressively both sides campaign on the issue. The conservative donors who funded the petition drive are probably good for some additional money to win the election. Dem consultant extraordinaire David Butts has promised to defeat the measure, but I imagine that any Democratic donor or activist in their right mind knows there are 10,000 more important races to care about this November. The city employees’ union (AFSCME) has made some noise about it, but a) this is Texas and unions are poor and b) are they really that worried about the city having to hire a consultant who’s going to write a report that nobody is required to pay any attention to? In all likelihood, the report will end up on a shelve, both literally and digitally, and serve as nothing more than a citation in a PhD dissertation a few decades from now. My guess: “The Consultant-Industrial Complex: A Qualitative Review of the Effects of Neoliberal Ideology, the Erosion of Class Consciousness, and Shifting Conceptions of Accountability on Municipal Government in the Southern United States in the Early 21st Century.”
The CodeNEXT initiative: Wait, how can there be a CodeNEXT initiative when CodeNEXT is dead? What is dead may never die!
In fact, the initiative is not only about CodeNEXT. Instead, it says that any “comprehensive revision” of the land development code, including CodeNEXT, should be subject to a waiting period and approval by voters. The controversy here is that, in contrast to the petition that 30,000 voters signed, the initiative on the ballot will not include the word, CodeNEXT. Also irritating to supporters of the initiative is that Council added wording that really drives home the prospect of the delays that it may cause. It states that the delay could last up to three years, which is true.
In contrast to the efficiency audit, I think the consequences of this initiative could be huge. If it’s approved, that could put the kibosh on any meaningful attempts to reform land use rules for years to come. And that could have significant implications for housing, affordability and transportation.
But the weird thing about the land use initiative is that there seems to be a pretty good chance that it would be successfully challenged in court if it’s approved. Maybe they’re all wrong, but I know there are many attorneys scratching their heads at Judge Orlinda Naranjo’s decision to put the initiative on the ballot. And even she didn’t rule on the merits of the argument that state law prohibits zoning via initiative.
The potential for a legal twist in the event of the initiative’s passage makes me wonder if opponents (urbanists, developers, housing advocates, the biz community) won’t take the campaign too seriously. They definitely want to win and they’re likely feeling more optimistic because of the slightly more favorable ballot language, but again, they’ve probably got other things on their plate this November (in some cases, they’ll be working against each other).
As for the neighborhood preservationists? The scrapping of CodeNEXT likely sapped them of their campaign zeal and they can no longer count on money from Machiavellian billboard companies. But I wouldn’t be surprised if Fred Lewis has a few tricks (and dollars) up his sleeve.