Thursday, July 19, 2018 by Jack Craver

So, what happens to CodeNEXT now?

Last month, a majority of City Council members, including Mayor Steve Adler, said they did not believe that a ballot initiative proposed by anti-CodeNEXT activists could be put before voters this November.

While the initiative had received more than enough signatures to qualify to be on the ballot, city attorneys and outside legal experts that Council consulted said that the initiative, which would require that CodeNEXT or any other major Land Development Code rewrite be approved by voters, conflicts with state law.

A provision of state law states that zoning cannot be subjected to the initiative process, unless the question is simply whether or not to have zoning regulations.

And yet on Monday, Travis County District Judge Orlinda Naranjo ordered the city to put the initiative on the ballot. Does that suggest that Council erred in its legal analysis?

The answer remains unclear because Naranjo’s ruling did not address the city’s legal reasoning or comment on whether the initiative, if enacted, would conflict with state law. Instead, she ruled that the city’s position was not yet “ripe” to assess because “neither the proposed initiative nor the underlying land development code has been passed as ordinances.”

Naranjo declined to comment on whether the proposed initiative would be illegal if it is approved. “(T)he Court is not permitted to make any judgment at this time on the substantive validity of the proposed initiative or its language,” she wrote.

At this point, it doesn’t seem likely that Council will support appealing the decision. Four Council members have supported putting the measure on the ballot from the beginning, while Adler has said that he will obey Naranjo’s order and Council Member Ann Kitchen indicated last month that she wanted to see the measure on the ballot as long as a judge rules it is legal.

It remains to be seen if there will be another legal battle if voters approve the proposed initiative.

“The case would be riper than it is now,” said former Council Member Chris Riley, who no longer practices law but spent five years working at the Texas Supreme Court and twelve years litigating in state courts.

Riley suggested a judge might rule that the part of CodeNEXT that deals with zoning cannot be subject to an initiative but that the other elements of the code that are unrelated to zoning could be.

If the initiative is approved, it will be up to somebody to challenge it in court. But if not the city, then who? It’s not clear whether a judge would find that the numerous individuals or organizations that have an interest in the issue have legal standing to bring suit. One of the principles of civil law is that a party must be able to claim that it has been harmed in some way in order to challenge a government action.

Clayton Gillette, an expert on local government law and director of the Marron Institute of Urban Management at New York University, said he found Naranjo’s reasoning puzzling. On one hand, Naranjo said that she could not determine whether or not CodeNEXT should be subject to the initiative process, but on the other hand she sided against the defendant, the city of Austin.

The judge appeared to have shifted the burden of proof to the defendant, said Gillette.

“It’s not clear to me that the city, rather than the plaintiffs, has the burden of proof,” he added.

Noting that standards for legal standing vary between states, Gillette did not venture a guess as to who would be in a position to challenge the initiative if it is approved by voters.

Fred Lewis, the lead attorney in the fight to get the petition on the ballot, said he was not concerned about the initiative being successfully challenged in court. Naranjo’s ruling is evidence that the city’s legal reasoning was flawed, he said.

“The city said it would never go on the ballot,” said Lewis. “They were wrong.”

The Austin Monitor discussed the possible repercussions of passing the proposed ordinance, and how a property owner might go about challenging it, with attorney Bill Aleshire. Aleshire was not involved in drawing up the petition, but he has considerable experience in the area.

If Council were to approve either CodeNEXT or some other major revision of the Land Development Code, and a property owner wanted to take advantage of the new code, the property owner would not be able to do so until after voters had approved the new code. Aleshire said, for example, if a property owner wanted to build an accessory dwelling unit only permissible under the new CodeNEXT zoning change, then the property owner would have standing to take the matter to court and ask a judge to declare the delay and voter approval requirement illegal, since the law says that zoning voter approval is only allowed on the question of whether or not to have zoning laws. Aleshire said that this law makes no sense, but it is the law.

So if the initiative is approved and withstands any legal challenges, what happens to CodeNEXT? That depends on what Council does and when it does it.

The initiative states that CodeNEXT or any other major revision of the Land Development Code cannot go into effect until June 1 after the next Council elections. After that waiting period, voters must have an opportunity to vote to approve what Council has adopted.

That means that if Council approves CodeNEXT before this year’s election, it will not be able to go into effect until after voters also approve it in November 2019.

However, in the very likely scenario that Council does not approve CodeNEXT until after this year’s election, it will not go into effect until after voters approve it in November 2021.

And of course, there’s the distinct possibility that voters will not approve CodeNEXT.

Said Riley: “It sets up a pretty messy process.”

Curious about how we got here? Check out the Austin Monitor’s CodeNEXT Timeline. This story has been changed since publication to correct Chris Riley’s legal background.

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Key Players & Topics In This Article

CodeNEXT: CodeNEXT is the name given to the land development code rewrite process undertaken in the early 2010s by the City of Austin.

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