Thus, summary judgment declaring [Ballot Question 300] altogether “invalid and unenforceable” is not appropriate.
— from Judge Maggie Enquist’s 2017 decision in the case of Longs Peak Metropolitan District v. City of Wheat Ridge.
At Tuesday’s meeting of the Pagosa Springs Urban Renewal Authority (URA) commission, commission member and former Archuleta County Administrator Greg Schulte continued his campaign to discourage town voters from establishing their right to participate in future “urban renewal” decisions that might actually have nothing to do with “urban renewal.”
Town voters can establish their rights to participate in URA decisions by voting “YES” on Ballot Question A. Mail ballots will go out at the end of June; the last day to vote in July 14.
Mr. Schulte’s preferred tool, brought before the URA commission on Tuesday, was a proposed Resolution that warned of dire consequences — that is to say, a future lawsuit filed against the Town government — should the voters assert their right to approve or reject future tax giveaways to private developers. Mr. Schulte argued that not only was such a lawsuit certain to be filed, but also that the Town was absolutely certain to lose said lawsuit, because an adverse decision had reportedly been handed down — once — in one of the numerous Colorado communities where the taxpayers have assumed a level of control over their local Urban Renewal Authority.
As things turned out, that Resolution — which you can download here — was not actively supported by a majority of the URA commission.
The proposed Resolution had contained, as resolutions typically do, a series of “WHEREAS” statements related to an upcoming mail-ballot election nominally dated for July 14, and concluded with a rather dramatic “NOW, THEREFORE”.
NOW, THEREFORE, the Pagosa Springs Urban Renewal Authority hereby opposes the proposed addition of Section 9.19 to the Town Charter and urges our citizens to vote against the ballot measure proposing the amendment set for vote on July 14, 2020.
How had Mr. Schulte become so certain that our citizen-initiated Ballot Question A would be challenged, and defeated, in a court of law, once it was approved by the town voters? (I expect most electors will vote “Yes” on the ballot measure.)
URA commissioner JR Ford argued that Mr. Schulte’s example — a 2017 decision concerning the City of Wheat Ridge’s URA — was not nearly as ‘cut-and-dried’ as Mr. Schulte apparently believed it was. (You can download that 2017 decision, by Judge Maggie Enquist, here.)
“I wouldn’t vote in favor of [this Resolution] under any scenario,” Mr. Ford explained, “but I think it does step over the line and makes it look like you’re politicking at that level. I see the similarity between the case they keep quoting and what’s happening in Pagosa, but there’s also a lot of differences. For one, [the Wheat Ridge suit was filed by] a special district that came under the authority of a URA, as far as negotiating with the projects.
“It’s a lot different when you look at what’s happening in Pagosa… where it’s taxpayers [initiating the ballot question.]
Mr. Ford stated that, although he’s generally in favor of using TIF funding to assist with certain economic development projects, “to state that these are identical cases? That’s not really correct.”
According to Mr. Ford, Judge Enquist had basically ruled that “both of you have issues here that are correct, and both have some that are wrong. I’m going to give a summary judgment… and they split the summary judgment. So this [Wheat Ridge] court case doesn’t settle anything…
“For the URA commission to take the stance that this is settled case law, when one judge gave a summary judgment that split the blanket? I think it’s just a little disingenuous for us to take such a strong stance.”
A motion by URA commission member (and Town Council member) Mat deGraaf to reject the proposed Resolution generated a split 5-to-5 vote, which meant the motion failed. But seeing the evenly-split nature of that vote, no one was willing to make a motion to approve the Resolution. So the Resolution died for lack of a motion.
Mr. Schulte and Mayor Don Volger may have felt they’d salvaged some benefit from the public discussion, however.
“Maybe just this discussion, and it being reported in the paper, is enough,” Mr. Schulte suggested.
Mayor Volger concurred. “I also agree that I think our SUN newspaper will do an extremely good job as far as expressing our concerns. And I just hope the public is well informed at the ballot box. Or when they mail in their ballots, I should say.”
Here are a few thoughts for town voters to consider, taken from an open letter submitted to Town Council by one of the amendment petitioners, local activist Glenn Walsh, questioning the wisdom of even mentioning the Wheat Ridge decision:
…Wheat Ridge offered no defense of its Home Rule Charter (I hope its lawyers didn’t bill more than an hour or two), there was no trial, a special district was given standing based on possible future TIF funding (a private citizen would never be given standing on that basis) and two novel limitations on a fundamental right in the Colorado Constitution were advanced.
First, [Enquist claimed that] if there is an mixture of state and local interests, voters forfeit their rights of initiative and referendum. Even a cursory survey of municipal referenda shows this to be untrue. Across the state for decades issues of criminal justice, transportation, telecommunications and economic development have been approved and disapproved by the voters. In at least six municipalities, voters disbanded their URA by initiative or referendum.
It’s a fundamental right in the Colorado Constitution that all legislative decisions of municipalities can be referred to the voters. The voters rights enjoy the same or very nearly the same scope as the Town Council in a municipality, when the TC is acting legislatively.
Enquist’s second assertion — that in the lengthy detail of the URA process there is no explicit endorsement of citizen referral rights — is obtuse. That right is fundamental and assumed in every municipal legislative decision.
One might ask why, in the lengthy URA law, initiative and referendum aren’t explicitly disallowed? But that question was never asked. [In Wheat Ridge] there was no trial, and no attempt to seriously address the issues.
I mean no undue disrespect to Judge Enquist, but she doesn’t decide constitutional issues in Colorado. Personally I’m weary of left and right wing judges on the federal level trying to issue national injunctions. Enquist is one of almost 200 local judges. She earns less-than-average marks on all of her reviews, and particularly low marks from attorneys on application of state statute.
If we allowed all of our fundamental constitutional rights to be eclipsed by one lower court judge, by summary judgement, we’d soon have no constitutional rights left.
If you wish to know more about Ballot Question A, visit this website: https://fairtaxes4pagosa.com
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.