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Big box suit filed

Several local residents have filed a lawsuit against the Town of Pagosa Springs, seeking to void Town Council’s decision in late August to scrap Section 2.4.5 of the town’s Land Use and Development Code (LUDC), which regulated the construction of large-format retail development — so-called big box development.

If successful, the lawsuit could reinstate Section 2.4.5 of the LUDC, forcing council to go back and vote on the measure again. Should that happen, in the meantime, plaintiffs in the suit could buy enough time to force a referendum, placing the issue of big box development in the hands of town voters.

The second reading of Ordinance 745 — repealing Section 2.4.5 of the LUDC — was heard at the Aug. 20 council meeting and was passed.

In a brief filed with the Archuleta County District Court on Monday by local attorney Matt Roane, the complaint stated that, “Plaintiffs are now in great doubt as to their rights to pursue a referendum action in Pagosa Springs pursuant to the authority embodied in the Home Rule Charter.”

At issue are procedural matters regarding how the town clerk made the original ordinance available for public inspection (between first and second readings) and stipulations for filing a petition for referendum to dispute the ordinance.

After council passed the first reading of the ordinance at its July 23 meeting, the ordinance was published as a public notice in the July 30 edition of The SUN stating that a full text of the ordinance would be available at the office of the Town Clerk.

Section 3.9(a) of the Town’s Home Rule Charter states, “(T)he full text of the ordinance, including any amendments, shall be available for public inspection at the office of the Town Clerk,” and states that the publication of that ordinance (and notice of the availability of the full text of the ordinance) “shall be published at least ten (10) days prior to each council meeting at which it will be considered on second reading.”

According to Roane’s complaint, “On August 17, 2009, Plaintiff Roane visited the office of the Town Clerk and asked to see the text of the Ordinance,” and adds, “(t)he office of the Town Clerk informed Plaintiff Roane that a copy of the Ordinance was not yet available and would not become available until after the Town Council officially adopted the Ordinance following a second reading.”

According to Town Clerk April Hessman, a deputy clerk fielded the request for the full text of the ordinance. “She was misinformed,” Hessman said. “It was an honest mistake.”

Roane says in his brief that he had contacted council member Shari Pierce on Aug. 18 regarding the ordinance not being posted with the town clerk; Roane’s complaint also states that he contacted Pagosa Springs Town Manager David Mitchem about the unavailability of the ordinance’s text with the town clerk. In both cases, Pierce and Mitchem e-mailed Roane the full text of the ordinance.

However, while the second reading of the ordinance was noticed in the Sept. 3 edition of The SUN, that notice did not include any language indicating that the full text of the ordinance would be available with the town clerk, in apparent violation of the town’s Home Rule Charter. According to Roane, the fact that the second reading was not properly noticed per stipulations in the Town Charter amounts to a two-prong approach in allowing the matter of big box regulations to go to the voters of Pagosa Springs.

“My argument is, it takes a proper notice to put the ordinance into effect,” Roane said. “Without proper notice, is the ordinance in effect? My suspicion is that it is not.”

In the complaint, Roane goes on to say that he and local business owner Ann Bubb filed a Notice of Intent to Circulate Referendum Petition with the town clerk on Sept. 15, within the deadline allowed by the charter. On Sept. 16, however, the town clerk rejected that notice, citing that neither Roane nor Bubb were registered voters in the town.

While Section 5.2(A) of the Town Charter says, “The registered electors may require an adopted ordinance to be referred to them at an election in accordance with the referendum power reserved by Article V, Section 1(9) of the State Constitution,” (implying that only residents registered to vote in the town can file a Notice of Intent to Circulate Referendum Petition), the Constitutional Article cited in the section is not completely clear.

While Article V, Section 1(II)(9) of the Colorado State Constitution says, in part, that, “(R)eferendum powers reserved to the people by this section are hereby further reserved to the registered electors of every city, town, and municipality,” adding that, “municipalities may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation,” the phrase, “the registered electors of every city, town, and municipality,” implies that any registered Colorado voter can initiate a referendum anywhere in the state.

Furthermore, the town’s charter remains vague as to exactly who can initiate the referendum process. Despite the language in 5.2(A), the charter states in Section 5.3 that, “Any person seeking a referendum on an enacted ordinance shall submit to the Town Clerk a written notice of intent to circulate a referendum petition within thirteen (13)days after publication following final passage of the ordinance,” and the section leaves open the question of just who “any person” might be.

On Oct. 5, town residents Jaime and Mat deGraaf filed a Notice of Intent to Circulate Referendum Petition with the town clerk; that petition was also rejected, on Oct. 7, on the premise that the notice was filed outside of the 13-day window stipulated in the Town Charter.

Which leads to the second prong of the argument outlined in the brief: if the second reading of the ordinance was not properly noticed (and thus, remains ineffective until it has been properly noticed), the deGraaf’s petition continues to be within the timeline allowed by town charter since the petition timeline is premised on the ordinance being properly noticed — which, the law suit alleges, did not happen.

Roane stated he had met with town staff in an appeal to give the voters of Pagosa Springs the chance to decide the fate of big box regulations, an assertion backed up by Town Manager David Mitchem. “Mr. Roane and I have met a number of times,” Mitchem said. “It’s been cordial. We’ve been respectful of each other.”

However, Roane stated that town staff was inflexible in the matter and would not entertain the notion of a referendum. While Mitchem said that he and Roane held a conversation last week “for about an hour long,” Mitchem conceded that, “Mr. Roane has decided to move forward.”

Roane notified the town of his intention to file the suit last Friday.

While Roane’s complaint throws into question the effectiveness of Ordinance 743, the complaint raises larger questions regarding how the town processed the ordinance and satisfied stipulations spelled out in its charter. Furthermore, the complaint highlights vague language in the town charter, language that, if council chooses to clarify, would have to go to the voters.

For their part, the plaintiffs in the suit believe that Ordinance 743 is a matter that should go before the voters. “I’m not saying that I’m opposed to big box, per se,” said Bubb, “but they took out language in the code that would have demanded responsible development. It’s not saying no big box,” Bubb added, regarding the lawsuit, “it’s about thoughtful big box.”

Regarding the lawsuit and the pursuit of a referendum, deGraaf explained, “We believe in the democratic process and we believe the town circumvented that process.”

“It’s not just an issue that affects me, but my children,” deGraaf said. “To not put that to the people is just irresponsible and wrong.”

According to Roane, the complaint would most likely be expedited in district court, “hopefully within the next 60 days.”

Should Judge Gregory Lyman rule in favor of the plaintiffs (and the validity of a petition for referendum), Roane, Bubb and the deGraafs would have 90 days to collect the signatures of 10 percent of the town’s electorate — about 83 signatures. If enough signatures are collected and those signatures have been certified, the town would put the matter on the ballot in April (when three council seats will be up for grabs, along with the mayor’s seat).

If, after the election, the voters decide to reject Ordinance 743 and retain big box regulations, the new ordinance would stand for two years, with council unable to amend or repeal the ordinance passed by the voters (per town charter).

However, the charter presents an interesting scenario. Once the referendum petition has been presented to council, council could choose to repeal its own ordinance, cancelling the need for an election. However, once council has repealed its own ordinance, nothing in the charter prevents council from reintroducing its own ordinance, and passing it — freeing itself from the charter’s two-year “hands off” clause regarding voter-approved ordinances.

Whatever happens, it’s apparent that the big box issue is not over. More than that, while the town grapples with big box development, it also appears faced with the task of cleaning up procedural missteps among staff and ambiguous language in the town charter. Due to those problems, council could soon find out if it acted on the will of the voters as it applies to big box regulation.

jim@pagosasun.com