appeal; intransitive verb
1 : to arouse a sympathetic response
2 : to make an earnest request
3 : to take a lower court’s decision to a higher court for review
A couple of friends expressed their condolences, over the weekend, in connection with a Pagosa Springs SUN article about District Court judge Jeffrey Wilson’s order invalidating the Town’s ‘Workforce Housing Fee’.
Judge Wilson had published a previous order, in late December, invalidating the fee… and then published another order, two days later, invalidating his own order.
The latest order was published on January 2. You can download the January 2 ruling here.
I was naturally disappointed in the ruling, since I was part of the activist group that had petitioned the ‘Workforce Housing Fee’ onto the Town’s ballot last April. Our petition asked the town voters to impose a $150-per-bedroom-per-month fee on Short Term Rentals (STRs, vacation rentals) located within the municipal limits. Ballot Question A had been narrowly approved, but was almost immediately challenged by a group of downtown STR owners who enlisted the help of Durango law firm Eggleston Kosnik LLC.
Every year, in December or January, local government boards adopt their fee schedules for the coming year. Rarely do we hear much discussion or argument from the board members about the fee amounts.
The fees are set, and the citizens pay them.
I can’t recall a previous instance when a fee established by Archuleta County or by the Town of Pagosa Springs was challenged in court, although I’ve occasionally read about legal challenges to fees established by the State of Colorado, and fees established in other communities. I’ve certainly heard people complain about our local County, Town, and water district fees, but haven’t previously seen the complaints land in front of a judge.
This particular ‘Workforce Housing Fee’, as approved by the voters, is roughly equivalent to the STR fee recommended by the Town Planning Commission in July 2021, but never approved by Town Council.
I am using the present tense — “is roughly equivalent” — because a ruling by a District Court judge is not always the final ruling.
If the Town Council really wanted to support the rights of the voters to create legislation — as guaranteed in the voter-approved Town Home Rule Charter — the Council would likely be asking the Town Attorney to appeal Judge Wilson’s decision to a higher court. But the option to appeal Judge Wilson’s decision was not discussed, or even mentioned, by Town Attorney Clay Buchner when he announced the ruling at the January 3 Council meeting.
One of the more interesting appeals in recent Pagosa history took place in 2009, when the fishing organization Trout Unlimited challenged a decree of water rights granted by District Court Judge Greg Lyman to Pagosa Area Water and Sanitation District (PAWSD)and the San Juan Water Conservancy District (SJWCD).
PAWSD was planning to collect some relatively massive fees from home builders and development projects in Archuleta County, to fund a 35,000-acre-foot reservoir in the Dry Gulch Valley, but the legal team at Trout Unlimited (TU) challenged Judge Lyman’s decision, all the way to the Colorado Supreme Court. The Supreme Court determined that the water rights were ‘speculative’ and were not justified by the actual population growth seen in Archuleta County. The case was sent back to Judge Lyman, who proceeded to grant rights for a slightly smaller 24,000-acre-foot reservoir. TU again appealed the decision, and the Supreme Court again rejected the PAWSD/SJWCD proposal.
TU and PAWSD ultimately stipulated to an 11,000-acre-foot reservoir, with added conditions such as a limit on diverting water when the San Juan River was below a certain flow rate.
A subsequent PAWSD board put the Dry Gulch project onto the back burner, and greatly reduced the fees charged to new construction.
My point being, a District Court judge’s opinion is not necessarily the best and final opinion. Colorado has a system of appellate courts, and beyond that, the Colorado Supreme Court. Potentially, two more bites at the apple, so to speak.
If the Town Council wanted to support the voters right to the initiative process.
However….
…Judging by the negative comments that came from certain Town Council members, back in April, following the citizens’ approval of the ‘Workforce Housing Fee’, I suspect that those same Council members would have little interest in appealing Judge Wilson’s ruling. Whether that amounts to a majority of the Council, I can’t rightly say.
People in positions of power don’t always like to share power with ordinary citizens, regardless of what might be promised in the Home Rule Charter.
In my humble opinion, the voter-approved ‘Workforce Housing Fee’ was based on some sensible ideas. (I can easily say that, because I helped write the ballot language, with a small group of friends.)
One of the ideas: that STRs are commercial lodging operations, but pay only one-quarter the property tax rate of other commercial lodging operations because they are classified — for some idiotic reason — as a ‘residential use’. Which they are obviously not. But the Colorado legislature — for some idiotic reason — refuses to classify them as a commercial use. You can probably guess the idiotic reason.
This classification means that an STR contributes one-quarter of the taxes towards our schools, fire district, health districts, water districts, library, and local governments, compared to a motel assessed at the same valuation. We felt the ‘Workforce Housing Fee’ could help address that discrepancy, locally, assuming the Colorado legislature was not going to address it.
In particular, we thought the fee could be roughly equivalent to the ‘tax loophole’ these mini-motels were benefiting from. We calculated that equivalence to be about $150 per bedroom per month, so that a small one-bedroom STR would pay less than large four-bedroom STR.
We thought that sounded fair.
We also exempted STRs if the house was the primary residence of the owner… because, in that situation, the STR was indeed a ‘residential use’.
We thought that sounded fair, as well.
What I hope to get across, in this editorial series, is that the citizen-approved ‘Workforce Housing Fee’ was actually well-thought-out, and fair.