Scope of Oak Creek petition open to interpretation

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— The petition submitted to the town of Oak Creek to either limit the town’s ability to collect management fees from its utilities or put the matter to a vote edged closer to completion this week.

The format of the petition, submitted by Oak Creek property owner Scott Wedel and former Mayor Kathy “Cargo” Rodeman, initially was rejected by the town.

Town Attorney Bob Weiss detailed in a letter the changes that need to be made to the petition before it can move forward.

Language in three sections of the petition needs to be altered to satisfy state statutes, according to Weiss' letter.

The changes should be easy to fix, but it’s the nature of what the petition attempts to address that could prove to be a bigger hiccup.

The Colorado constitution holds that initiative and referendum powers vested in the people apply to legislative matters.

Weiss’s letter raises the question of whether Wedel and Rodeman's petition applies to an act that is “legislative in character.”

The petition proposes that any money transfered from the enterprise funds that run Oak Creek's utilities to its general fund be reimbursements for actual costs or approved by a simple majority of the town's voters. The town's 2013 draft budget includes management fees charged to the utilities that are paid into the general fund.

Numerous cases have gone before the Colorado Supreme Court seeking to determine if a petition addresses a legislative act.

The opinion in the case City of Aurora v. Zwerdlinger (Colorado Supreme Court, 1977) describes the distinction as follows:

Numerous tests have been employed by various courts to determine whether a particular ordinance is legislative or administrative. It has been held that an action that relates to subjects of a permanent or general character are legislative, while those which are temporary in operation and effect are not. Additionally, acts that are necessary to carry out existing legislative policies and purposes or which are properly characterized as executive are deemed to be administrative, while acts constituting a declaration of public policy are deemed to be legislative.

However, it is up to the town whether to challenge the scope of the petition or allow it to proceed uncontested, Weiss said.

In an email, Wedel wrote that he thinks the petition is appropriate.

Before receiving the letter from Weiss, Wedel had complained about the town’s petition process.

Town Administrator Mary Alice Page-Allen said that she wanted the petition done correctly, and the town had its counsel review the petition to make sure it was.

“Obviously, it's going to be a hotly contested thing, and it’s in his interest to have it correct,” Weiss said. “We’re trying to give him every opportunity to do what he is entitled to.”

To reach Michael Schrantz, call 970-871-4206 or email mschrantz@SteamboatToday.com

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