Austin is undergoing a five-year, $8.5 million rewrite of its land development code—known as CodeNEXT—in response to the pressures caused by rapid population growth. Proposed zoning changes that would add housing density in central city neighborhoods have dominated much of the debate, and in March, the city clerk received a valid petition signed by more than 31,000 Austinites demanding CodeNEXT’s fate depend on a public, not City Council, vote.
City Council’s rejection of the public vote notion resulted in a lawsuit—heard Monday—between the petitioners and city leaders. Should Naranjo side with the petitioners the city would have to ask voters whether they think they have the right to vote on a land development code rewrite. The city has until Aug. 20 to put that question on the November ballot. Otherwise, City Council is expected to vote on CodeNEXT this fall.
Can citizens vote on zoning matters?
Monday’s hearing featured many of the same arguments the sides have publicly made. The petitioners, represented by local attorneys Bill Bunch and Fred Lewis, say City Council should not stand in the way of a people’s right to vote on an issue that impacts them. The city, represented by Jane Webre of Scott, Douglas & McConnico, said when it comes to zoning, state law limits the use of public elections—a law the city has no choice but to follow.
However, Lewis and Bunch argued the question proposed for November’s ballot has nothing to do with zoning, or CodeNEXT, but rather with City Council's duties. Residents petitioned City Council to create an ordinance requiring land development code rewrites to be approved by a public vote. Since council voted against creating the ordinance, law mandates the question be placed on the ballot and voters decide.
Lewis said the petitioned ordinance deals with land development code rewrites and argued not all land development codes involve zoning. He said the question of voting rights on zoning cases is only relevant after voters approve the ordinance, the city adopts it and then CodeNEXT is placed on the ballot. Until then, Lewis said, it is impossible to know what CodeNEXT might be; however, he maintained that people should have the right to vote on it.
“People should have a say; it will affect their property, their home, their neighborhood, their community and their city,” Lewis said. “Council is interfering with people’s right to vote. We don’t do that in a democracy.”
Although council made the decision to reject to the petition, said Webre, its actions were only a reflection of state statute, which has withdrawn questions of zoning from public elections.
“The election itself would violate the law because the subject matter is withdrawn from the field [of possibilities],” Webre said.
Webre said zoning makes up roughly 44 percent of CodeNEXT's pages and that its "tentacles" reach even further. Zoning is "inextricable" from CodeNEXT, she said, and "mayhem" would ensue if only the zoning portion of the code remained following a public vote.
