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Legal questions swirl around soccer stadium petition

Tuesday, January 15, 2019 by Jack Craver

The organizers of an initiative aimed at stopping the construction of a Major League Soccer stadium in North Central Austin say that the city must hold an election on the matter in May, despite contrary claims from city attorneys.

Last week, a group of activists submitted roughly 30,000 signatures in support of an ordinance that would bar for-profit sports facilities from using city-owned property. If the clerk certifies the petition as valid, City Council must either vote to approve the ordinance or put it on the ballot for voters to decide in the next election.

The next available election date is in May. However, the city legal department has said that the initiative cannot be placed on the May ballot because of a city charter provision that prohibits more than two special elections from taking place within six months of each other.

The city contends that because there were two initiatives on the ballot in November – one aimed at stopping CodeNEXT and one to require an audit of city government – another initiative cannot be placed on the ballot until next November.

In an email Thursday, Friends of McKalla Place, the group that supports the initiative, released a statement accusing Mayor Steve Adler and supporters of the soccer stadium of “misleading the news media and the public” about the rules. The election, the group insisted, must be held in May.

Supporters of the initiative say that the clerk is misinterpreting a provision of the charter that prohibits two special elections from taking place within six months. The two recent initiatives appeared on a general election ballot and therefore do not fall under the rules about special elections.

“It is our understanding the election can and will be held in May,” said an email from Friends of McKalla Place in response to questions from the Austin Monitor. It was not clear who the author of the email was. The group did not respond to a follow-up question asking who wrote the email. So far, the only person referenced in the group’s statements has been Craig Nazor, a local environmental activist. Neighborhood activist Francoise Luca is also involved.

Former Travis County Judge Bill Aleshire, a seasoned litigator who frequently represents activist groups battling the city in court, agrees that the city’s interpretation of the charter is incorrect. “Whoever is trying to stop the May election needs to re-read their charter,” he said.

However, city officials insist that the propositions on the November ballot indeed counted as special elections, even if they coincided with the general election.

“The only election that the city of Austin holds on a regular fixed date is the election for council members, which, per the Charter, must occur in November of even-numbered years. Therefore, all other elections are special elections, and only ordered as necessary,” said Andy Tate, a city spokesman, in an email to the Monitor.

Tate pointed to the ordinance City Council approved last year to order the November election. The ordinance ordered a “general election” for the Council races and separately ordered a “special election” to be held on the same day on 11 different propositions.

The more important question is not when the election will be held, but whether the initiative, if approved, will affect the soccer stadium approved for McKalla Place.

Representatives for Precourt Sports Ventures, the company that owns Austin FC and plans to build the stadium, insist that a citizen initiative cannot undo the contract between the company and the city that Council approved last year.

“We have a signed contract and you can’t undo that by ordinance,” Richard Suttle, an attorney for PSV, told the Monitor last week.

Aleshire said it may not be so simple.

“There is a constitutional prohibition against interference with contracts, but there are exceptions,” he said, explaining that there are cases where a new law could put in place “procedural changes” that could affect an existing contract retroactively.

One of the key backers behind the initiative is Bobby Epstein, the chairman of Circuit of the Americas and the majority owner of Austin Bold, a professional soccer team that competes in the lower-ranked United Soccer League and is scheduled to begin playing later this year. Epstein has contributed more than $100,000 to support the anti-MLS initiative, most recently by founding his own political action committee, Fair Play Austin, which gathered signatures for the initiative.

Representatives for Fair Play Austin could not be reached for comment on Monday.

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