Steamboat Springs A lawyer from the American Civil Liberties Union said Friday the city's stance on the number of signatures needed to bring a referendum before the voters is unconstitutional and he's pretty sure the Supreme Court of Colorado would agree.
The Colorado branch of the ACLU weighed in on the side of a group of petitioners trying to force impact fees to a vote earlier this week, claiming they had been denied their right to bring a city ordinance to a vote of the people through a referendum process.
Impact fees were passed unanimously by the seven members of the Steamboat Springs City Council on June 19. The fees are charged on new development and pay for the city's capital needs generated by new development (new buildings, park facilities, etc.). A group of five petitioners attempted to get the fees which they viewed as potentially damaging to affordable housing efforts and an attempt to circumvent the voters on a major financial decision placed on the ballot. They got enough signatures to satisfy the requirements of the state constitution, which asks for 10 percent of the electors to sign, but not the requirements of the city's home rule charter, which asks for 20 percent.
City Council members are charged to uphold both the state constitution and the city charter. This time, however, they said they feel the charter, which the residents of Steamboat Springs voted into place in 1973, takes precedence.
Now the fees, which were initially criticized because of their effect on the housing market, are at the center of a debate on the rights of residents to bring a city ordinance with which they disagree before the voters.
Simon Mole, the ACLU attorney, said he has no interest in debating the merits of impact fees.
"That's not the issue for us at all," he said. "We're trying not to get involved in impact fees. Our issue here is the rights of the people to have a referendum."
Mole was contacted by attorney Bob Weiss, who is representing the petitioners, to "get an expert opinion," as Weiss put it. After reviewing the state constitution and some relevant case law, Mole said he was convinced that the city's stance on the petition process was unconstitutional. He sent a letter dated July 30 stating his concern.
The basic issue at hand is a conflict between the city's home rule charter and the state constitution, which is more lenient in terms of the number of signatures needed to order a referendum.
The petitioners were able to gather 889 signatures asking the city to put impact fees which were approved by City Council without having to go before the voters on the ballot. The 889 signatures were equal to more than 10 percent of the electorate at the last municipal election in 1999. That was enough to meet the requirements of the Colorado Constitution, but not enough to meet the more stringent requirements of the city charter.
On those grounds, City Clerk Julie Jordan-Struble denied the petitioners their request for a ballot question on impact fees.
That's when the dispute, which Weiss had anticipated since the petitioners first pulled papers, began.
Law, in many ways, is the study of levels of power, Mole said Friday. The highest level of power in the United States is the U.S. Constitution. After that come state constitutions, Mole said. Home-rule charters are meant to protect cities from rulings by the state Legislature that may abridge local rights, he said. But the charter does not supersede the constitution, he said.
"The home rule provision is really about the city verses the Legislature. It doesn't wipe out provisions of the state constitution," Mole said.
The opinion that cities cannot impose a requirement for referendums more stringent than the state was handed down by the Colorado Supreme Court in 1960 in Burks v. City of Lafayette, according to Mole. Although the state constitution gives cities some rights to determine the way they conduct referendum petitions, the court ruled that the minimum number of petitions was enforced by the state and could not be increased.
City Attorney Tony Lettunich said the rights of referendum can be limited, though he did not comment on the specific case cited by Mole.
While City Council President Kevin Bennett called Mole's letter "one person's opinion," Councilman Paul Strong was somewhat more guarded in his response.
Strong said he is relying on the opinion of the city's attorney, who said he thinks the city's charter takes precedence. Lettunich said he thinks it's just as important to protect the people who drew up and voted on the charter as it is to protect the current petitioners and those who signed the petition.
Strong said he agrees with that idea. He said the state constitution established the right of a city to govern itself with a home rule charter. He said he thinks this move by the impact fee group may be their most recent attempt to do whatever it takes to get on the ballot.
"This seems to me like there's a group that didn't get the signatures required under the charter and now they're trying to do something else," Strong said.
Critics from the City Council and a group called "no free lunch for developers" have painted the petitioners as a group of people connected with the development industry who simply want to protect their financial investments.
The petitioners, in turn, portray themselves as concerned residents who want to exercise their rights as citizens and allow the community to vote on an important issue.
Whether the petitioners are simply trying to find a new angle to get the fees onto the ballot or the city really is overstepping its bounds, may be decided in the next few weeks. If not, it could potentially be decided in court.
Weiss sent a letter to the city dated July 31 asking the City Council to reverse Jordan-Struble's decision to deny the petitioners a ballot question. Weiss, who has continually insisted that he is not carrying the ball on this issue and wants to maintain good relations with the city, is waiting for City Council to respond to the letter at the next City Council meeting on Aug. 21.
He said he "expects the city to do the right thing," which he thinks means going by the requirements of the state constitution.
Weis said he does not know what will happen if the City Council decides against allowing the question on the ballot.
"We'll cross that bridge when we come to it," he said.
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