At the conclusion of Part One, I suggested that the real personality conflict at Town Hall is between Ever-Expanding Government and We the People. That conflict was readily evident at the Pagosa Springs Urban Renewal Authority (URA) meeting on May 21, when former Archuleta County Administrator Greg Schulte attacked the admissibility of a proposed Home Rule Charter amendment that has been petitioned onto the July 14 ballot by 140 registered Town electors. Ballot Question A, if approved, will give town voters the ability to approve or reject large TIF (Tax Increment Financing) subsidies before they can be granted to private developers.
Mr. Schulte had enlisted the help of newly appointed Town Attorney Clayton Buchner in an attempt to define this proposed charter amendment as doomed to failure. During the URA commission meeting, Attorney Buchner referenced a 2017 lawsuit in the City of Wheat Ridge, a suburb of Denver, where a district court judge had ruled a similar voter initiative to be invalid under Colorado law.
Some readers might remember Mr. Schulte as the former County Administrator who masterminded the creation of a $13 million debt for a new Archuleta County jail, through ‘Certificates of Participation’, after county voters had twice rejected a similar debt at the polls. He was also instrumental in helping arrange millions of dollars in new taxpayer debt at Town Hall while serving as Pagosa Springs Town Manager — also through ‘Certificates of Participation’ and also without taxpayer approval.
One could easily form the impression that Mr. Schulte dislikes the very idea of taxpayer approvals — one of the cornerstones of taxation policy in Colorado.
On May 21, he fumed at the impudence of those 140 registered Pagosa voters, thinking they could have a voice in approving large tax subsidies provided to future developers. Mr. Schulte based his accusatory comments on Attorney Buchner’s analysis of a Wheat Ridge court decision.
“I guess I just have to say I’m kind of disappointed. I don’t know how we got here. If the ballot question that is put forth in July is approved, then we’re essentially inviting a lawsuit that, based upon what I read, the Town is going to lose…I would wonder if the proponents of the ballot measure knew this case was out there when they were gathering signatures. Because if I was a town person and I had signed [the petition] and they didn’t tell me that there is a court case, a decision that was made, that would basically invite a lawsuit to the town — it’s probably not legally valid — I’d feel misled.”
Attorney Buchner supported Mr. Schulte’s assumption, publicly accusing the petitioners of having “an agenda.”
“I think they have an agenda. They have some argument against Mr. Schulte’s line of thinking based on assumptions and suppositions. The fact remains, you see what the actual information is there in front of you. It would be the Town’s time and resources and money defending it. Not theirs.”
During my 15 years as a political reporter here in Pagosa Springs, I have certainly witnessed the Town Council deciding to use our tax money to defend their own (occasionally illegal?) actions, but I cannot recall the Town government ever defending the right of We the People to initiate better government through a petition process. Maybe there’s a first time for everything.
And perhaps it’s Mr. Schulte and Attorney Buchner who have an agenda, based on assumptions and suppositions?
One of the people who has worked the hardest on perfecting the proposed TIF charter amendment is Pagosa resident Glenn Walsh. Readers may recall the role Mr. Walsh has played as a Pagosa Area Water and Sanitation District (PAWSD) board member, in helping to put the disastrous Dry Gulch Reservoir safely into a (currently harmless) holding pattern, and helping reduce the even more disastrous Water Resource Fee that had threatened to bring development to a complete standstill during the Great Recession.
Upon hearing that Mr. Schulte and Attorney Buchner were citing a 2017 Wheat Ridge case, Mr. Walsh took some time to understand the full meaning of that particular controversy — which actually involved two different decisions by two different judges. As many of our readers are no doubt aware, a decision by a district court judge — such as the 2017 Wheat Ridge decision by Judge Maggie Enquist — has limited legal importance outside of that particular judge’s district. One might even say, it has no legal importance at all, outside of her own district. In Colorado’s legal system, only an Appellate Court decision or a Supreme Court decision sets a firm legal precedent.
Mr. Walsh shared the results of his research with the Town Council, so they could have a balanced view of what, exactly, had taken place in Wheat Ridge. Turns out, the charter amendment in Wheat Ridge was focused directly on defeating a planned Walmart store, and the petitioners had made the mistake of trying to insert an ex post facto feature into the proposed law.
From Mr. Walsh’s letter to Council:
There is no interest on my part in decorating the Home Rule Charter with reassuring but impotent legislation, so I’ve spent the past week studying the Great Wheat Ridge Walmart War of 2014-2017. Sadly, it’s a war everyone lost and the fiscal casualties are steep and ongoing.
Now Walmart wars don’t bring out the best. Even in Pagosa, one shopping center owner organized harassment gangs to bully and intimidate Walmart representatives at a Town organized information session.
In Wheat Ridge, in 2015, some very passionate anti-Walmart activists passed a home rule charter amendment which applied retroactively to a TIF funded Walmart project. In 2016 a local judge issued a very closely reasoned and focused order declaring any retroactive application of the amendment (and it applied only to Walmart) a violation of the state constitutional prohibition of ex post facto laws.
Judge Bachmeyer’s ruling was a summary judgment. There was no trial of facts or law. The City of Wheat Ridge refused to defend the voters’ right to approve [or reject] TIF funding retroactively.
That happens, on occasion. A Town Council refuses to defend the constitutional. legislative power of its own citizens to define government processes via the ballot box. The City of Wheat Ridge may have had good reason, however, to refrain from defending Ballot Question 300. Both the US and Colorado Constitutions specifically prohibit ex post facto laws — laws that prohibit or regulate something that happened in the past. Laws in America are forward looking. What is done, is done, and cannot be the subject of a law passed ‘after the fact’.
Section 11 of article II of the Colorado Constitution provides that “No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly…”
The folks who proposed a retroactive ballot measure — trying to invalidate a deal between Walmart and the City of Wheat Ridge that was already in place — were on insecure footing from the git-go, and Judge Bachmeyer probably ruled correctly in invalidating Ballot Question 300.
A later ruling by district court judge Maggie Enquist, however, seems more like something from a poorly scripted sitcom. A ruling with ‘an agenda’, you might say.
Bill Hudson began sharing his opinions in the Pagosa Daily Post in 2004 and can’t seem to break the habit. He claims that, in Pagosa Springs, opinions are like pickup trucks: everybody has one.