elpasospeak

The Durangito crowd has been trying to stop the construction of the performing arts center by creating an ordinance that would rezone the area.

Unless they take the issue to court it appears that they have been stymied by city council.

What they seem to fail to understand is that there is a difference between creating zoning and objecting to zoning.

Texas law (local government code) reads:

Sec. 211.015. ZONING REFERENDUM IN HOME-RULE MUNICIPALITY. (a) Notwithstanding other requirements of this subchapter, the voters of a home-rule municipality may repeal the municipality’s zoning regulations adopted under this subchapter by either:

(1) a charter election conducted under law; or

Our city charter gives the citizens the right to petition to create an ordinance.  The Durangito group might want to look at modifying the city charter through a petition and election.  Section 9.004 of the Texas local government code (for the benefit of the people at the city, that’s a law) says:

The governing body shall submit a proposed charter amendment to the voters for their approval at an election if the submission is supported by a petition signed by a number of qualified voters of the municipality equal to at least five percent of the number of qualified voters of the municipality or 20,000, whichever number is the smaller.

The state only allows city charter elections every two years.  If my recollection is correct the last one we had was on November 3, 2015 so an election can be called for.

The city is aware of this.  This slide came from a February 23, 2015 presentation:

We deserve better

Brutus

Further to the issue of the city’s out of town lawyer telling us and city council that:

 For decades, Texas Courts have consistently held that the power of the people to legislate through initiative petition or
referendum does not extend to zoning.

They could have

Notwithstanding any charter provision to the contrary, a governing body of a municipality may adopt a zoning ordinance and condition its taking effect upon the ordinance receiving the approval of the electors at an election held for that purpose.

That language is part of Texas Local Government Code section 211.015.  It clearly states that city council could have given us a vote on the zoning issue downtown.  That would be different from the process of initiative or referendum, but would require council to care about what the public thinks.

We don’t know how the citizens would vote if the issue were put on the ballot, but it would certainly clarify things.

Then again they simply don’t want us to have a say in the issue.

We deserve better

Brutus

The other day one of the out of town lawyers the city has hired to fight the recently denied second petition (see Killing initiative) either told a whopper or the Times misquoted him.

According to the Times:

Denton said the wording of the City Charter language regarding petition initiatives must have caused confusion.

The City Charter states the petition may be submitted to the city clerk and that official must verify the signatures and “thereafter must place the reproposed ordinance on the ballot at the next general election specified in state law.”

“The charter purportedly states the city secretary immediately puts the initiative onto the ballot, but the city secretary has no authority in Texas law to place something on the ballot,” Denton said.

The facts

Section 52.002 of the Texas election code reads this way:

Sec. 52.002. AUTHORITY PREPARING BALLOT. Except as otherwise provided by law, the following authority shall have the official ballot prepared:

(1) for an election ordered by the governor or a county authority, the county clerk;

(2) for a primary election, the county chair of the political party holding the primary;

(3) for an election ordered by a city authority, the city secretary; and

(4) for an election ordered by an authority of a political subdivision other than a county or city, the secretary of the subdivision’s governing body or, if the governing body has no secretary, the governing body’s presiding officer.

Acts 1985, 69th Leg., ch. 211, Sec. 1, eff. Jan. 1, 1986. Amended by Acts 1997, 75th Leg., ch. 864, Sec. 48, eff. Sept. 1, 1997.

Point 3 clearly indicates that our city secretary (and only the city secretary) has the authority to prepare the ballot.

The city’s website explains it this way:

The City Clerk’s Division is responsible for conducting City elections for Mayor, City Representatives, El Paso Municipal Court and El Paso Municipal Court of Appeals Judges, Charter elections, recall elections, bond elections, and referendums.

Our city charter requires the city clerk to put such items on the next general election ballot and state law confirms the authority.

So was this guy lying or is he ignorant?  Can we get a refund on his fees?

We deserve better

Brutus

Our city charter gives citizens the ability to propose ordinances.

A petition must be signed by at least five percent of the number of voters in the last city general election.  City council then considers the item and either kills the proposal or proceeds with the proposal as though it was a regular ordinance.

A qualifying petition relating to the proposed site of the performing arts center was rejected by council in June.

As allowed by our city charter a second petition with at least five percent of the number of voters in the last city general election was then circulated and signed.

The second petition was turned over to the city clerk.  The city clerk found that the signatures were valid and that the petition qualified for the second step in the process, which would have been for the city clerk to put the item on the next city general election ballot.  From the city charter:

 and that official (the City Clerk) shall have twenty working days in which to authenticate the signatures and thereafter must place the reproposed ordinance on the ballot at the next general election specified in State law, if the proposal received the favorable vote of a majority of those voting in that election it shall thereupon become a City ordinance.

Not possible

Recently a lawyer for the city convinced council not to put the item on the ballot.  His claim is that Texas law does not give the City Clerk the authority to put something on the ballot.

Thus, according to this lawyer our right of initiative is inoperative because the city charter is poorly worded.

Could it be that the lawyer is wrong?  Stay tuned.

We deserve better

Brutus