Austin City Council chose not to give residents the right to vote on CodeNEXT or any future rewrite of the land development code following a 6-4 vote in the early hours of Friday.
Whether residents will get to vote on that right to vote remains in question as legal uncertainties continue to swirl around a recent validated petition signed by 26,000 residents who demand a say on the results of the highly contested 5-year, nearly $9 million project to rewrite the city’s land development code.
The narrow vote came at the tail end of a more than 16-hour City Council meeting that began Thursday and stretched into Friday morning. Those voting in favor of giving the citizen’s the right to vote were District 9 Council Member Kathie Tovo, District 1 Council Member Ora Houston, District 7 Council Member Leslie Pool and District 10 Council Member Alison Alter. All other council members, with the exception of the absent Ellen Troxclair from District 8 voted against the motion.
Earlier in the month, officials, including Austin Mayor Steve Adler, said giving voting power to the residents would result in inequity. He said it would give more power to the wealthier areas of town—areas that usually have greater voter turnout—rather than ensuring each area of town‘s vote was weighed equally through their elected representative.
Will there be an election?
The submission of a validated petition for citizen-initiated legislation typically goes one of two ways. Either City Council votes to adopt the legislation, or City Council is legally obligated to call an election to let the residents decide. However, earlier in the day, City Council received legal advice that they are not required to call an election in this instance.
C. Robert Heath, attorney from firm Bickerstaff Heath Delgado Acosta LLP, told City Council on Thursday not only are they not required, but have no authority to act on the validated petition. Heath said state law holds that zoning laws are outside the scope of citizen-initiated legislation.
In a Feb. 21 memo to city attorney Anne Morgan, Heath said rejection of the petition would likely result in a lawsuit from the petitioners.
“The outcome of litigation is never guaranteed,” Heath wrote. “However, the significant weight of legal authority supports the conclusion that an election is not required.”
During Heath’s testimony to council on Thursday, an audience member shouted, “See you in court.”
Bill Bunch, an attorney with the local organization Save Our Springs Alliance, told City Council Thursday they are legally required to put the question on the ballot. From there a judge can decide whether the question is valid, but the question has to be placed on the ballot.
Fred Lewis, an attorney and treasurer with Let Us Vote Austin—the political action committee that helped submit the petition—said the city could legally decide on its own to give citizens the right to vote on CodeNEXT.
A petition allegedly signed by more than 32,000 people who want to vote on CodeNEXT was submitted in March to the city clerk by Let Us Vote Austin and the volunteer group IndyAustin.
The petition—considered an attempt at citizen-initiated legislation—aimed to force a citywide vote on whether residents should have the right to vote on comprehensive rewrites of the city’s land development code. In order to force an election, the petition needed five percent of the city’s registered voters, or 20,000 signatures.
In this case, the citizen-initiated legislation asserted citizens retain the right to vote on a code rewrite. If the petition is validated, citizens would then vote in November 2018 on whether they agree with that assertion. If a majority voted in favor of the legislation, citizens would be given that right, and the actual vote on CodeNEXT would not come until the following November.
On April 23, the City Clerk’s Office announced the petition’s validation, with an estimate of 26,000 signatures. A sufficient and validated petition would normally initiate an election, however city officials continue to raise questions.