A legal memo from the city of Austin’s attorney declaring a local petition to put CodeNEXT on the ballot in November invalid is the latest move in what has been, and continues to be, a lengthy multilateral battle over draft three of Austin’s years-long attempt to rewrite the city’s 30-year-old land development code (LDC).

The memo was sent Feb. 28 to the City Council from Austin City Attorney Anne Morgan, who hired an external attorney to assess the petition’s legality; whether or not the petition’s 24,000 signatures would suffice to trigger a voter referendum (20,000 signatures are needed to achieve this) landed on the memo’s verdict.

“In short, his determination is that council is neither required nor authorized to call an election on the petition because Texas courts have held that zoning is not a permissible subject within the scope of the initiative and referendum process,” reads the memo.

The memo comes after many months of public debates, hearings and consultations over the fate of the code’s revision, which has not garnered popular support due to a number of perceived flaws: some think it will encourage overdevelopment, while others worry that the code’s restrictions will be an impediment to urban density and growth.

“It will make it harder for millenials to find housing. It will also make it harder for people who are trying to remain in Austin or who have had to move out of Austin and want to come back: what I call remain and return,” Stuart Hersh, a former developer for the city said.“It’s going to make it harder for everybody.”

Hersh said he had written codes for the city for three decades before working for a non-profit. He oversaw the implementation of Austin’s SMART housing program in 2008?, which “promotes the development of housing for lower-income residents,” according to the Austin-American Statesman.

He is concerned that the code will restrict housing affordability and access, but grimaces at the idea of a proposed voter referendum, which the petition tried to achieve.

“I am absolutely opposed to that,” Hersh said. “I think that when we elect a mayoring council they have a duty to change the law in the direction that we as a community have said we want it to be changed and I don’t want to take away that authority.”

Still Hersh, who regularly takes his guitar to city council meetings, is unhappy with the proposed draft and says major changes need to be made before he can support CodeNEXT.

“We’ve heard through the whole public conversation process of the steps that would need to be taken in order for a change in the law to significantly impact housing affordability and most of those suggestions are not included in the draft CodeNEXT in its current form,” Hersh said. “They may have heard what we said but it’s not incorporated in the draft, not at the moment anyways.”

Like many city activists who oppose CodeNEXT, Hersh’s primary concerns are affordability and access for Austinites – especially those who have been displaced by gentrification and steeply rising costs- but there are plenty of residents who are weary of the environmental and social implications of the new code, too.

“It’s unfortunate but it’s not surprising that we’ve ended up with CodeNext in the condition it is,” Adam Greenfield, a community organizer said. “And it certainly will be better. It will be much better than what we have right now but it’s not going to conform to the goals of Imagine Austin, which calls for a compact and connected Austin.”

Although Greenfield is optimistic about some aspects of the plan (almost everyone agrees that at its worst CodeNEXT is a step up from the city’s outdated LDC) he laments the missed opportunity for more density in the neighborhoods, which would decrease the population’s dependency on driving and encourage multimodal transportation: people would walk, ride their bikes and take the bus.

“The third draft of CodeNEXT which is where we are right now ultimately doesn’t touch the neighborhoods too much. It focuses most of the change on where there’s going to be least resistance change which is the commercial arterial streets of Austin like South Congress, Lamar, and Burnett,” Greenfield said. “I think on those streets we could see an improvement in quality of life. There will be more opportunities for people to live and work and shop in a very close range of each other and I think that’s going to be really beneficial.”

On an urban design tour that he leads down South Congress one Saturday, Greenfield explains how the idea of induced demand— which says that building wider roads leads to more congestion, not less — is something that an overwhelming majority of people without a design background don’t understand.

Greenfield cites this as a main factor in the inability of Austin leaders to move forward with a plan that would bring people closer together, ultimately reducing infrastructure costs and lessening negative environmental impact.

“Most people don’t have fluency in this subject so it’s difficult. I understand the position that the leaders of Austin are in. They get elected, they get votes on the promise of congestion relief which is actually not possible,” Greenfield said.

“I think Code Next is ultimately a conservative approach to the challenges that Austin faces as a community. Austin was a fairly typical 20th century American city that built itself around the automobile and that has created a lot of problems for the city, especially when people live far apart from each other.”